Full Transcript for Did the Constitution Lay the Groundwork for Abolition?

lay in the 71 00:03:36.099 --> 00:03:41.560 course of ultimate extinction. And before getting to the anti-slavery 72 00:03:41.659 --> 00:03:46.530 constitutionalist views of the influential abolitionists, let's start with a 73 00:03:46.539 --> 00:03:49.129 few observations. The first, of course, is that at the 74 00:03:49.189 --> 00:03:53.250 time of the authorship of the Constitution, intellectual leaders pretty 75 00:03:53.289 --> 00:03:57.840 much universally agreed that slavery was evil. Nobody at the 76 00:03:57.879 --> 00:04:04.520 Constitutional Convention of 1787 tried to offer a substantial defense 77 00:04:04.819 --> 00:04:07.530 of slavery. There was one person who spoke in defense 78 00:04:07.550 --> 00:04:09.710 of slavery, and he simply said, well, it's been the 79 00:04:09.750 --> 00:04:12.669 practice of all of history, which, of course, is true. 80 00:04:13.090 --> 00:04:16.569 But there was no intellectual argument in defense of slavery. 81 00:04:16.610 --> 00:04:20.310 That wasn't to come about until about the 1830s, when 82 00:04:20.410 --> 00:04:25.560 the rise of the pro-slavery positive good school, as it's called, 83 00:04:25.899 --> 00:04:29.560 really got underway in the South, led by Southern politicians 84 00:04:29.699 --> 00:04:30.480 such as John C. 85 00:04:30.540 --> 00:04:31.120 Calhoun. 86 00:04:31.480 --> 00:04:35.220 At the time of the Constitution's authorship, it appeared that 87 00:04:35.300 --> 00:04:38.000 slavery was on its way out already. It seemed to 88 00:04:38.019 --> 00:04:41.759 be disappearing. Several states were already moving to abolish it 89 00:04:41.800 --> 00:04:44.860 or had already moved to abolish it. And no state 90 00:04:44.899 --> 00:04:49.160 had created slavery where it had not previously existed. And 91 00:04:49.199 --> 00:04:52.319 so if you're an intellectual in 1788, you look around you, 92 00:04:52.339 --> 00:04:55.370 it appears to you that slavery is on its way out. 93 00:04:56.079 --> 00:04:59.100 And for good reason, right? Economists such as Adam Smith 94 00:04:59.120 --> 00:05:02.399 had been pointing out that slavery was economically inefficient, and 95 00:05:02.439 --> 00:05:06.149 there was really no economic reason for it to persist, although, 96 00:05:06.189 --> 00:05:09.649 of course, those who already had slaves were obviously unwilling 97 00:05:09.689 --> 00:05:13.089 to let go of their slave property. Second, note that 98 00:05:13.110 --> 00:05:16.829 the Constitution makes no textual reference to slavery. It would 99 00:05:16.850 --> 00:05:19.050 have been very easy for the Founding Fathers to have 100 00:05:19.089 --> 00:05:22.480 inserted a clause in the Constitution to say, slavery shall 101 00:05:22.519 --> 00:05:25.439 be protected. But not only did they not do that, 102 00:05:25.480 --> 00:05:28.300 but they don't even use the word slave or slavery 103 00:05:28.439 --> 00:05:31.449 in the documents. Frederick Douglass was later to remark that 104 00:05:31.550 --> 00:05:35.069 those claiming that the Constitution protected slavery were in the 105 00:05:35.110 --> 00:05:37.490 position of a man claiming that he owned a piece 106 00:05:37.509 --> 00:05:40.250 of property, and then when he showed the deed contained 107 00:05:40.389 --> 00:05:43.850 no reference to the location of the property, right? That 108 00:05:44.509 --> 00:05:48.290 really forces defenders of slavery to bear the burden of 109 00:05:48.410 --> 00:05:52.970 proof to justify slavery's existence as opposed to forcing the 110 00:05:53.110 --> 00:05:57.420 anti-slavery forces to justify the restriction of slavery. Nothing in 111 00:05:57.480 --> 00:06:02.000 the Constitution had to be changed for slavery to be ended. 112 00:06:02.110 --> 00:06:04.889 This was a point that abolitionists made very frequently prior 113 00:06:04.930 --> 00:06:07.990 to the ratification of the 13th Amendment. The Constitution was 114 00:06:08.050 --> 00:06:11.970 compatible with the abolition of slavery as it was, which 115 00:06:12.029 --> 00:06:15.600 is a very important point. Finally, the Constitution gives Congress 116 00:06:15.689 --> 00:06:19.379 power over the Western territories, over new territories that are 117 00:06:19.560 --> 00:06:23.019 added to the Union. And that power is unlimited, that 118 00:06:23.079 --> 00:06:26.560 Congress has the power in all cases whatever to legislate 119 00:06:26.660 --> 00:06:29.319 for this territory. And of course, one of the very 120 00:06:29.360 --> 00:06:32.519 first things that Congress did upon its organization was to 121 00:06:32.579 --> 00:06:37.060 pass the Northwest Ordinance restricting slavery. Now, with those ideas 122 00:06:37.120 --> 00:06:39.100 in mind in the background, let's take a look at 123 00:06:39.139 --> 00:06:45.139 the pro-Constitution, pro-abolition arguments. that was put forward by abolitionists 124 00:06:45.180 --> 00:06:48.800 such as Frederick Douglass, who argued that slavery was already 125 00:06:48.939 --> 00:06:52.819 unconstitutional even before the ratification of the 13th Amendment. An 126 00:06:52.860 --> 00:06:56.019 extreme argument, I admit, but nevertheless a very interesting one. 127 00:06:56.779 --> 00:06:58.470 They begin with the starting point, which is how do 128 00:06:58.500 --> 00:07:01.790 you interpret the Constitution? You have to have rules of interpretation. 129 00:07:01.850 --> 00:07:05.069 After all, everybody does. The first rule of interpretation that 130 00:07:05.089 --> 00:07:09.230 they offer is only the text is the law. not 131 00:07:09.269 --> 00:07:14.050 the subjective intentions of the framers, not some background historical context, 132 00:07:14.110 --> 00:07:16.370 but the actual words on the page are the only 133 00:07:16.410 --> 00:07:19.920 thing that are the Constitution. Second, the Constitution should be 134 00:07:19.980 --> 00:07:24.680 interpreted as pro-freedom whenever possible. Now, they weren't just making 135

00:07:24.740 --> 00:07:26.500 up that rule. That was a rule that the U.S. 136 00:07:26.560 --> 00:07:30.899 Supreme Court had already announced in the 1800s. So pro-Constitution, 137 00:07:30.959 --> 00:07:33.939 anti-slavery forces said, OK, these are our rules of interpretation. 138 00:07:34.040 --> 00:07:36.870 Only the text is the law. And if we can 139 00:07:36.889 --> 00:07:40.100 interpret the text as pro-freedom, we should do so. Now 140 00:07:40.160 --> 00:07:43.160 look at the Constitution through those lenses. As I mentioned, 141 00:07:43.180 --> 00:07:45.819 the Constitution makes no explicit reference to slavery, and it 142 00:07:45.879 --> 00:07:49.129 only has four passing references to slavery in the document. 143 00:07:49.170 --> 00:07:53.029 The Three-Fifths Clause, the Fugitive Slave Clause, the Import-Export Clause, 144 00:07:53.189 --> 00:07:59.149 and the Insurrections Clause. Anti-slavery pro-constitutional theorists like Douglass pointed 145 00:07:59.189 --> 00:08:02.389 out that you could interpret all of these as innocent, 146 00:08:02.689 --> 00:08:07.519 with innocent explanations, or pro-freedom, anti-slavery explanations. The Three-Fifths Clause 147 00:08:07.560 --> 00:08:10.420 did not protect slavery. In fact, if anything, it rewarded 148 00:08:10.480 --> 00:08:14.160 states that might abolish slavery. It simply recognized that slavery 149 00:08:14.220 --> 00:08:18.930 existed and accommodated its existence. The import-export clause not only 150 00:08:18.970 --> 00:08:21.389 did not protect slavery, but it actually put a deadline 151 00:08:21.430 --> 00:08:24.069 on the importation of slaves of 1808, only 20 years 152 00:08:24.129 --> 00:08:26.949 after the ratification of the Constitution. And, by the way, 153 00:08:27.250 --> 00:08:30.500 Congress had abolished the slave trade almost instantly the moment 154 00:08:30.519 --> 00:08:35.669 that became legally possible. Insurrections Clause could easily be interpreted 155 00:08:35.929 --> 00:08:40.169 as with an innocent non-pro-slavery explanation, which is that you 156 00:08:40.210 --> 00:08:43.269 had insurrections sometimes, right? You had the Shays' Rebellion, for example, 157 00:08:43.340 --> 00:08:47.139 the Whiskey Rebellion, which were not slave rebellions. And it 158 00:08:47.320 --> 00:08:50.100 obviously made sense for the federal government to have control 159 00:08:50.200 --> 00:08:53.620 in those kinds of situations. And then the so-called Fugitive 160 00:08:53.659 --> 00:08:56.080 Slave Clause, which again does not use the word slave, 161 00:08:56.539 --> 00:08:59.799 but refers to persons held for a term of service. 162 00:09:00.659 --> 00:09:04.039 And that, of course, included apprentices. At the time, indentured 163 00:09:04.100 --> 00:09:07.539 servants and apprentices were quite common, and their agreements specified 164 00:09:07.570 --> 00:09:09.730 that they could not leave their jobs for a certain 165 00:09:09.750 --> 00:09:13.850 amount of

time. Many did, however, illegally fleeing their term 166 00:09:14.029 --> 00:09:17.190 of labor. Probably the most famous of these is Benjamin Franklin, 167 00:09:17.470 --> 00:09:20.269 who fled his term of service as an apprentice in 168 00:09:20.289 --> 00:09:23.850 Massachusetts and illegally was, well, you might say, an illegal 169 00:09:23.909 --> 00:09:28.409 immigrant to Pennsylvania as a young man. Those clauses persisted. 170 00:09:28.899 --> 00:09:33.080 therefore don't protect slavery, the anti-slavery pro-constitutional forces said. And 171 00:09:33.320 --> 00:09:36.720 other clauses are incompatible with slavery, such as the due 172 00:09:36.759 --> 00:09:39.279 process clause of the Fifth Amendment that prohibits a person 173 00:09:39.330 --> 00:09:43.009 from having their liberty taken away without due process of law. Obviously, 174 00:09:43.049 --> 00:09:46.710 slavery violated that. The bill of attainder clause. Slavery is 175 00:09:46.769 --> 00:09:49.850 a kind of bill of attainder, the abolitionists argued. And 176 00:09:49.970 --> 00:09:53.980 most importantly, the privileges and immunities clause of Article 4. 177 00:09:53.980 --> 00:09:55.279 This is the most important of them. 178 00:09:55.710 --> 00:09:59.110 Privileges and immunities clause recognized that there are two kinds 179 00:09:59.309 --> 00:10:03.129 of citizenship. federal and state, and prohibited the states from 180 00:10:03.250 --> 00:10:09.080 interfering with federal citizenship. Pro-Constitution abolitionists like Douglass pointed out 181 00:10:09.139 --> 00:10:13.450 that Black people could be citizens of states, for example, Massachusetts. 182 00:10:14.350 --> 00:10:16.990 And because of that, they could be federal citizens because 183 00:10:17.029 --> 00:10:19.350 at that time, you were a citizen of the federal 184 00:10:19.389 --> 00:10:21.970 government if you were a citizen of a state. And 185 00:10:22.009 --> 00:10:24.350 that meant that Black individuals could be citizens of the 186 00:10:24.389 --> 00:10:28.110 United States and therefore protected by the Privileges and Immunities 187 00:10:28.129 --> 00:10:31.659 Clause that prohibited states from depriving them of the privileges 188 00:10:31.779 --> 00:10:34.659 and immunities of federal citizenship. When you put all those 189 00:10:34.700 --> 00:10:37.480 things together, what you have is an instrument that gives 190 00:10:37.539 --> 00:10:40.960 the government sufficient power to end slavery if it chooses 191 00:10:41.039 --> 00:10:43.809 to do so. But of course, that last clause is 192 00:10:43.850 --> 00:10:46.889 really the big catch, right? Because after the founding and 193 00:10:46.950 --> 00:10:49.889 particularly beginning in about 1800, what you had was a 194 00:10:49.970 --> 00:10:52.870 series of politicians elected to Congress and the presidency and 195 00:10:52.909 --> 00:10:53.509 placed on the U.S. 196 00:10:53.529 --> 00:10:55.720 Supreme Court who were pro-slavery. 197 00:10:56.120 --> 00:11:00.730 And who, in the abolitionists' eyes, were perverting the fundamentally 198 00:11:00.879 --> 00:11:05.730 pro-freedom document that is the Constitution into a pro-slavery document 199 00:11:05.789 --> 00:11:09.649 which was never its intention. As Frederick Douglass said, interpreted 200 00:11:09.690 --> 00:11:12.169 as it ought to be interpreted, the Constitution is a 201 00:11:12.269 --> 00:11:16.669 glorious liberty document. But both Congress, the presidency, and also 202 00:11:16.690 --> 00:11:20.929 the courts instead chose to interpret the Constitution perversely as 203 00:11:21.000 --> 00:11:24.220 a pro-slavery document. The most infamous example of this is 204 00:11:24.279 --> 00:11:26.730 Dred Scott. If you boil down Dred Scott, and that's 205 00:11:26.769 --> 00:11:28.110 kind of hard to do because it is a very 206 00:11:28.149 --> 00:11:30.309 long opinion. It was one of the longest opinions in 207 00:11:30.330 --> 00:11:32.330 the history of the Supreme Court. But if you boil 208 00:11:32.370 --> 00:11:34.909 it down to its essence, what the court says is 209 00:11:35.549 --> 00:11:39.200 it cannot be the case that the declarations reference to 210 00:11:39.500 --> 00:11:44.659 all men includes black individuals, because if that were the case, 211 00:11:45.080 --> 00:11:50.070 the Congress would have abolished slavery on July 4th, 1776. 212 00:11:50.610 --> 00:11:52.850 But as Abraham Lincoln pointed out in his response to 213 00:11:52.870 --> 00:11:56.070 the Dred Scott decision, that isn't really a good argument 214 00:11:56.149 --> 00:11:58.649 at all, because there are all sorts of reasons why 215 00:11:58.690 --> 00:12:02.649 the Continental Congress did not abolish slavery on July 4th, 1776, 216 00:12:02.649 --> 00:12:05.580 none of which prove that the authors of the Declaration 217 00:12:05.720 --> 00:12:09.220 did not think that all men included black individuals as well. 218 00:12:10.029 --> 00:12:12.210 And since that's the only piece of evidence, and it's 219 00:12:12.250 --> 00:12:14.950 a really lame one, I believe the Dred Scott opinion 220 00:12:15.110 --> 00:12:18.879 was incorrectly decided. I think it's rather shocking how many 221 00:12:18.940 --> 00:12:21.659 intellectual leaders in the United States today think Dred Scott 222 00:12:21.700 --> 00:12:25.320 was correctly decided. They are the ones who argue that 223 00:12:25.340 --> 00:12:29.100 the Constitution was not intended to encompass black citizenship, that 224 00:12:29.139 --> 00:12:32.220 the Declaration of Independence did not really mean all men 225 00:12:32.360 --> 00:12:35.000 and only actually meant white men, which the founders did 226 00:12:35.059 --> 00:12:38.740 not in fact say or believe. I think it's really shocking, 227 00:12:38.759 --> 00:12:41.620 and it's my hope that conversations like this may persuade 228 00:12:41.639 --> 00:12:45.110 Americans that, in fact, Dred Scott was wrongly decided. The 229

00:12:45.129 --> 00:12:48.250 Constitution is for all people, and the Declaration of Independence 230 00:12:48.330 --> 00:12:49.210 means what it says. 231 00:12:49.649 --> 00:12:50.870 All men are created equal. 232 00:12:52.149 --> 00:12:53.149 Thank you, Professor Sandifer. 233 00:12:53.169 --> 00:12:56.990 And then we have Professor Kenneth Williams, a fellow Texan, 234 00:12:57.269 --> 00:12:58.409 myself from Texas Tech. 235 00:12:59.210 --> 00:13:02.570 Okay, thank you for inviting me to this very important discussion. 236 00:13:02.970 --> 00:13:05.190 So a few points I want to make on the 237 00:13:05.350 --> 00:13:09.629 other side of this debate. that the Constitution was actually pro-slavery. 238 00:13:09.669 --> 00:13:11.450 The first thing I would point out is that the 239 00:13:11.490 --> 00:13:14.710 Constitution could have abolished slavery, but it did not. There 240 00:13:14.750 --> 00:13:18.470 were certain practices that were abolished under the Constitution. For instance, 241 00:13:18.509 --> 00:13:23.159 the ex post facto provision in the Constitution prohibited that 242 00:13:23.220 --> 00:13:26.919 practice of ex post facto laws. Bills of retainer were 243 00:13:27.019 --> 00:13:30.960 also prohibited under the Constitution. But the framers did not 244 00:13:31.080 --> 00:13:36.259 prohibit slavery in the original Constitution. And that is evidence, 245 00:13:36.419 --> 00:13:40.379 I think, that the Constitution was definitely designed to be anti-slavery. 246 00:13:40.590 --> 00:13:42.610 The second point I would make is that there's actually 247 00:13:42.629 --> 00:13:46.490 no mention in the original Constitution of the principle of equality. 248 00:13:46.590 --> 00:13:49.409 Of course, it's mentioned in the Declaration of Independence, but 249 00:13:49.450 --> 00:13:53.450 it was not mentioned in the Constitution. If the Constitution 250 00:13:53.690 --> 00:13:56.389 is supposed to be anti-slavery, why would you mention the 251 00:13:56.429 --> 00:13:59.990 principle of equality, which is pretty clearly stated in the 252 00:14:00.049 --> 00:14:03.409 Declaration of Independence? One of the main arguments I'd make 253 00:14:03.470 --> 00:14:06.049 in terms of the Constitution, I would disagree with Professor 254 00:14:06.070 --> 00:14:11.700 Sander on the Fugitive Slave Clause. The only type of property, 255 00:14:12.009 --> 00:14:16.460 private property that is protected specifically in the Constitution is 256 00:14:16.700 --> 00:14:20.059 protected through the Fugitive Slave Clause, what is known as 257 00:14:20.100 --> 00:14:23.379 the Fugitive Slave Clause. There's no other type of property 258 00:14:23.399 --> 00:14:27.669 that has any sort of special protection under the Constitution. 259 00:14:28.840 --> 00:14:33.750 someone's wheat or someone's horses or someone's cotton or someone's 260 00:14:33.830 --> 00:14:36.929 rice was taken. There was no provision for having that 261 00:14:37.090 --> 00:14:40.639 property

returned to the owner of the property. the only 262 00:14:40.759 --> 00:14:44.570 type of property that received any sort of special protection 263 00:14:44.690 --> 00:14:47.970 was through the fugitive slave clause. Well, why would that 264 00:14:48.029 --> 00:14:50.570 type of property be protected other than the fact that 265 00:14:50.610 --> 00:14:53.350 it was designed to promote slavery? I'd also point out 266 00:14:53.389 --> 00:14:57.100 the justice story in Prick v. Pennsylvania said, quote, that 267 00:14:57.220 --> 00:14:59.860 it is well known that the object of this clause, 268 00:14:59.899 --> 00:15:03.120 the fugitive slave clause, was to protect the interests of 269 00:15:03.200 --> 00:15:06.960 citizens of the slaveholding states. So I think it's pretty 270 00:15:07.000 --> 00:15:09.799 clear through the to the slave clause, even though the 271 00:15:10.000 --> 00:15:13.480 term slavery was never mentioned, that was the design of 272 00:15:13.539 --> 00:15:17.600 the clause to protect slavery and the slave-owning states. Then 273 00:15:17.639 --> 00:15:20.009 I would also point out the Three-Fifths Clause. The Three-Fifths 274 00:15:20.029 --> 00:15:22.990 Clause was very important because of the fact that it 275 00:15:23.029 --> 00:15:26.470 gave a lot of power to the southern and slave-holding 276 00:15:26.629 --> 00:15:30.769 states in two ways, basically. It enhanced representation in the 277 00:15:30.809 --> 00:15:35.039 House of Representatives of the slave-holding states. I'll give you 278 00:15:35.059 --> 00:15:39.039 an example. So, If the slaves had not been counted 279 00:15:39.230 --> 00:15:42.769 at all, then Pennsylvania would have been the largest state 280 00:15:42.850 --> 00:15:45.960 in the country. But because the slaves were counted as 281 00:15:46.000 --> 00:15:49.779 three-fifths of a person, that made Virginia the largest state. 282 00:15:50.389 --> 00:15:53.610 in the country, and it enhanced the representation that the 283 00:15:53.649 --> 00:15:57.169 southern states had in the Congress. Well, why is that important? 284 00:15:57.210 --> 00:15:59.840 Because that's important because they basically, they were given a 285 00:15:59.860 --> 00:16:03.580 veto over any attempt to abolish or even to modify 286 00:16:03.620 --> 00:16:07.179 the institution of slavery through the Three-Fifths Clause. The other 287 00:16:07.220 --> 00:16:10.559 important aspect of the Three-Fifths Clause is the election of 288 00:16:10.580 --> 00:16:14.529 the president, of course. We elect presidents through the Electoral College. Well, 289 00:16:14.909 --> 00:16:19.230 it gave more representation in electoral college than slaveholding states. 290 00:16:19.830 --> 00:16:22.350 So it turns out that we had what eight of 291 00:16:22.389 --> 00:16:26.169 the first 12 presidents of the United States were slave owners. 292 00:16:26.720 --> 00:16:30.299 And that is because of the design of the Three-Fifths Clause. 293 00:16:30.639 --> 00:16:33.059 And then also just the simple fact that the Three-Fifths 294 00:16:33.080 --> 00:16:35.639 Clause existed, that if you were white, you were counted 295 00:16:35.740 --> 00:16:38.360 as no matter what your station in life was. You 296 00:16:38.379 --> 00:16:41.340 could be an indentured servant. You could be any, no 297 00:16:41.360 --> 00:16:44.100 matter what your position in life was, you were counted, 298 00:16:44.159 --> 00:16:46.649 if you were a white person, as a person. Who 299 00:16:46.690 --> 00:16:49.909 was not counted as people, as a person, full person? 300 00:16:50.250 --> 00:16:52.990 It was only the slaves. Well, I think the design 301 00:16:53.009 --> 00:16:57.200 there was pretty clear. Then you also had the insurrection clause. 302 00:16:57.250 --> 00:17:00.460 He mentioned that clause. Well, it provided the federal government 303 00:17:00.480 --> 00:17:04.119 with the opportunity and the power to basically put down 304 00:17:04.220 --> 00:17:08.730 slave insurrections, which the The federal government actually did in 305 00:17:08.769 --> 00:17:11.799 the case of the Nat Turner rebellion and also the 306 00:17:11.890 --> 00:17:15.980 John Brown rebellion at Harpers Ferry. The federal power was 307 00:17:16.099 --> 00:17:20.039 used to suppress those insurrections. So it gave the authority 308 00:17:20.059 --> 00:17:23.660 of the federal government to intervene on the behalf of slavery. 309 00:17:24.140 --> 00:17:26.019 And then also you had the export, the ban on 310 00:17:26.039 --> 00:17:30.680 the Constitution forbade any sort of export taxes. And that 311 00:17:30.720 --> 00:17:34.480 was done to promote slavery. What the southern states were 312 00:17:34.519 --> 00:17:37.740 concerned about was that Congress if it could actually impose 313 00:17:37.859 --> 00:17:41.880 export taxes, that it would end up doing so on 314 00:17:41.920 --> 00:17:47.079 exports that were produced by the slaves and the slave states. 315 00:17:47.240 --> 00:17:50.569 And so they were insistent on inserting this clause into 316 00:17:50.609 --> 00:17:54.150 the Constitution to ban on export taxes. Then also I 317 00:17:54.150 --> 00:17:59.069 would point out the Congress did actually abolish the importation 318 00:17:59.130 --> 00:18:01.960 of slaves But what they did was they abolished it 319 00:18:02.140 --> 00:18:05.720 in the original Constitution in 1776, but it didn't go 320 00:18:05.759 --> 00:18:12.049 into effect until 1808, 21 years after the Constitution was ratified. 321 00:18:12.609 --> 00:18:15.710 And also they provided that date could not be changed. 322 00:18:16.190 --> 00:18:20.970 So it protected for a 21-year period the importation of 323 00:18:21.190 --> 00:18:24.309 slaves into the United States. So I think that further 324 00:18:24.349 --> 00:18:29.009 happens that the Constitution was designed to be pro-slavery. Then 325 00:18:29.069 --> 00:18:31.269 I also point out in terms of, of course, a 326 00:18:31.329

--> 00:18:35.140 separate provision, the three-fourths clause of the Constitution, that the 327 00:18:35.180 --> 00:18:40.039 Constitution could only be ratified through a vote of three-fourths 328 00:18:40.079 --> 00:18:44.019 of the states. That also helped to protect slavery. In 329 00:18:44.079 --> 00:18:48.039 response to President Lincoln and also Frederick Douglass, I would 330 00:18:48.079 --> 00:18:51.890 point out, yes, they did argue that the Constitution was anti-slavery, 331 00:18:52.369 --> 00:18:54.710 but I would say that they were being good lawyers 332 00:18:54.769 --> 00:18:57.190 in that circumstance. What do you do if you're a 333 00:18:57.230 --> 00:19:00.930 lawyer and you're trying to move Back then in the 1860s, 334 00:19:01.230 --> 00:19:03.890 you're trying to abolish slavery. Well, you argue what you have. 335 00:19:03.970 --> 00:19:06.250 What do they have at their disposal? They had the 336 00:19:06.309 --> 00:19:09.670 Constitution and they had the Declaration of Independence. So I 337 00:19:09.710 --> 00:19:11.799 think that's why they took the position that they didn't 338 00:19:11.819 --> 00:19:14.079 have the 13th Amendment. They didn't have the 14th Amendment. 339 00:19:14.099 --> 00:19:16.160 They didn't have the 15th Amendment. They didn't have civil 340 00:19:16.180 --> 00:19:18.700 rights laws on the books that they could argue. The 341 00:19:18.759 --> 00:19:23.119 only thing they could argue was the Constitution and also 342 00:19:23.140 --> 00:19:25.259 the Declaration of Independence. So I think they were being 343 00:19:25.309 --> 00:19:29.970 good lawyers. in making the argument that the Constitution was anti-slavery. 344 00:19:30.390 --> 00:19:35.240 My view is that the Constitution was deliberately ambiguous, but 345 00:19:35.579 --> 00:19:39.019 functionally pro-slavery. I would also point out that the Constitution, 346 00:19:39.059 --> 00:19:42.400 had it been anti-slavery, never would have been ratified. The 347 00:19:42.440 --> 00:19:46.130 southern slaveholding states and delegates from those states would not 348 00:19:46.170 --> 00:19:49.950 have ratified the Constitution that was in any way anti-slavery. 349 00:19:50.410 --> 00:19:54.039 And these accommodations to slavery were made in order to 350 00:19:54.140 --> 00:19:57.180 get the southern delegates in the southern states to join 351 00:19:58.160 --> 00:20:00.440 the Union and to sign on to the Constitution. 352 00:20:00.460 --> 00:20:02.960 All right. Thank you, Professor. 353 00:20:03.539 --> 00:20:06.160 I mentioned each side would have a chance to respond. 354 00:20:06.180 --> 00:20:06.480 So, Mr. 355 00:20:06.519 --> 00:20:09.960 Sandefur, is there anything you want to say in response? Sure. 356 00:20:10.000 --> 00:20:10.359 Thank you. 357 00:20:10.380 --> 00:20:12.740 First, I want to begin with a correction. The Fugitive 358 00:20:12.759 --> 00:20:15.519 Slave Clause does not protect property. The text of the 359 00:20:15.539 -->

00:20:20.059 Fugitive Slave Clause says, no person held for service or 360 00:20:20.119 --> 00:20:23.380 labor in one state under the laws thereof escaping into 361 00:20:23.440 --> 00:20:24.539 another shall. 362 00:20:24.279 --> 00:20:26.059 In consequence, etc., etc. 363 00:20:26.519 --> 00:20:28.960 But it, along with the other clauses in the Constitution, 364 00:20:29.009 --> 00:20:31.730 refers to the enslaved as persons, which I think is 365 00:20:31.829 --> 00:20:34.809 not a small point. I think it's really significant that 366 00:20:34.849 --> 00:20:38.019 the Constitution refers to them as persons. And it is 367 00:20:38.259 --> 00:20:40.500 as does the three fifths clause, which does not say 368 00:20:40.980 --> 00:20:43.920 that they are not persons. It says all other persons 369 00:20:43.980 --> 00:20:46.349 and referring to those who are enslaved. And it is, 370 00:20:46.390 --> 00:20:49.549 of course, true that the three fifths clause served the 371 00:20:49.609 --> 00:20:53.059 interests of the pro-slavery powers beginning after the turn of 372 00:20:53.099 --> 00:20:57.089 the century, beginning in the 1800s. But remember that the 373 00:20:57.170 --> 00:21:01.089 text rewarded states if they were to end slavery. I 374 00:21:01.150 --> 00:21:04.109 think it was intended by its authors as one of 375 00:21:04.150 --> 00:21:08.109 these subtle devices intended to try and push the public 376 00:21:08.150 --> 00:21:11.009 in a certain direction. I think that right there is 377 00:21:11.150 --> 00:21:14.470 really the important point. Of course, it was politically impossible 378 00:21:14.890 --> 00:21:19.799 to abolish slavery in 1787. The founding fathers were, to 379 00:21:19.920 --> 00:21:22.299 use a term that has a pejorative nowadays, the founding 380 00:21:22.319 --> 00:21:26.640 fathers were elitists. They firmly believe that there were those 381 00:21:26.720 --> 00:21:30.440 who are better educated and are more able to act 382 00:21:30.559 --> 00:21:34.690 as statesmen than others, and they expected the leadership class 383 00:21:34.829 --> 00:21:38.140 of the new country to lead public opinion in a 384 00:21:38.230 --> 00:21:40.539 beneficial direction. We see that, for example, in the very 385 00:21:40.579 --> 00:21:44.480 existence of the Electoral College and in the Senate. The 386 00:21:44.519 --> 00:21:46.680 structure of the Senate is to refine, I think it's 387 00:21:46.720 --> 00:21:48.940 to refine the public view, if I remember the line 388 00:21:48.960 --> 00:21:51.880 from the Federalist Papers. So the founders hoped that the 389 00:21:52.279 --> 00:21:55.099 intellectual leaders of the new country would push the public 390 00:21:55.440 --> 00:22:00.640 in a pro-freedom, anti-slavery direction. They did, however, primarily expect 391 00:22:00.680 --> 00:22:03.049 the states to and not the federal government to be 392 00:22:03.490 --> 00:22:06.430 in the driver's seat of this or really any other policy. 393 00:22:07.210 --> 00:22:10.339 I think that it's relevant that the South, and by 394 00:22:10.380 --> 00:22:13.339 the way, Frederick Douglass considered this as really definitive proof 395 00:22:13.359 --> 00:22:16.740 that he was right, that in 1861, the South is 396 00:22:16.789 --> 00:22:19.640 the one that had to abandon the Constitution and in 397 00:22:19.700 --> 00:22:23.079 order to preserve slavery. Remember that Lincoln did not even 398 00:22:23.220 --> 00:22:26.279 suggest that he would abolish slavery in those states where 399 00:22:26.319 --> 00:22:29.710 it existed. He simply wanted to restrict its spread to 400 00:22:29.750 --> 00:22:33.130 the West, which would then have the consequence of ultimately 401 00:22:33.250 --> 00:22:38.809 outnumbering the slave states in Congress, allowing for the possibility 402 00:22:38.829 --> 00:22:42.390 of restrictions and the ultimate abolition of slavery. And that alone, 403 00:22:42.430 --> 00:22:45.339 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 00:22:49.089 --> 00:22:51.950 And so that is precisely why the South felt it 406 00:22:51.990 --> 00:22:56.069 necessary to abandon the Constitution in order to preserve slavery. 407 00:22:56.289 --> 00:22:58.349 If it were the fact that the Constitution is a 408 00:22:58.390 --> 00:23:01.779 pro-slavery document, that would not have been the case. Finally, 409 00:23:01.819 --> 00:23:05.240 on this point about Lincoln and Douglass being lawyers, although 410 00:23:05.259 --> 00:23:08.480 technically speaking, Douglass was not a lawyer, but that, of course, 411 00:23:08.539 --> 00:23:12.200 we're all lawyers, right? What we're engaged in here is 412 00:23:12.220 --> 00:23:16.240 a legal argument. And remember that what legal argument tries 413 00:23:16.299 --> 00:23:20.710 to do is straddle the positive and the normative, the 414 00:23:20.759 --> 00:23:24.839 descriptive and the normative realms. As Ronald Dworkin pointed out, 415 00:23:24.940 --> 00:23:28.079 what lawyers try to do is give the best account 416 00:23:28.740 --> 00:23:31.980 of the law that puts it in the direction which 417 00:23:32.079 --> 00:23:36.480 is honorable. That's not a disparagement of what lawyers do. 418 00:23:36.680 --> 00:23:39.460 It's not saying that they're unobjective. Of course, they're objective. 419 00:23:39.940 --> 00:23:42.380 What they're trying to do, however, is give the morally 420 00:23:42.519 --> 00:23:45.640 best count of the law as they find it, which, 421 00:23:45.680 --> 00:23:49.619 of course, is a pro-freedom, anti-slavery argument. It was, in fact, 422 00:23:49.660 --> 00:23:53.890 the pro-slavery arguments, the pro-slavery lawyers who had a far 423 00:23:54.029 --> 00:23:58.490 harder burden. in justifying the perpetuation of slavery. That required 424 00:23:58.569 --> 00:24:01.190 federal intervention on

a degree that was not precedented and 425 00:24:01.230 --> 00:24:05.200 not authorized by the Constitution. It ultimately, they believed early on, 426 00:24:05.259 --> 00:24:09.180 required a constitutional amendment to preserve slavery and ultimately required 427 00:24:09.500 --> 00:24:13.180 a rebellion against constituted authorities and a brand new constitution 428 00:24:13.200 --> 00:24:15.990 for the Confederacy. It was they who really had the 429 00:24:16.069 --> 00:24:16.609 weaker of. 430 00:24:16.609 --> 00:24:20.380 The two arguments. Anyway, I'll leave it at that. Okay, 431 00:24:20.519 --> 00:24:23.299 I'll just make a point. It is correct that the Constitution, 432 00:24:23.339 --> 00:24:27.119 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 00:24:31.309 --> 00:24:35.009 was well understood in the slaveholding states. In fact, they 435 00:24:35.049 --> 00:24:38.589 define the slaves as property and that's what they were 436 00:24:38.849 --> 00:24:42.690 actually interested in protecting at the time. They were not, 437 00:24:43.390 --> 00:24:46.450 the slaveholding states were not concerned with returning an insured 438 00:24:46.529 --> 00:24:51.140 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 00:24:55.079 --> 00:24:56.700 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 00:25:05.920 --> 00:25:08.549 to your remarks and maybe trying to challenge what each 446 00:25:08.589 --> 00:25:09.430 side said and try to. 447 00:25:09.410 --> 00:25:11.650 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 00:25:14.369 --> 00:25:16.410 but maybe I'll start with Professor Williams. 450 00:25:17.250 --> 00:25:18.730 Would you what do you have to say. 451 00:25:18.589 --> 00:25:22.210 In response to, or would you agree that there are 452 00:25:22.349 --> 00:25:27.140 aspects in how the issue of slavery was discussed or 453 00:25:27.279 --> 00:25:31.039 treated at the time of the founding of the constitution 454 00:25:31.059 --> 00:25:37.920 that did reflect some recognition that slaves are people. I 455 00:25:37.960 --> 00:25:43.220 think there's personhood. It's not treated the same as say, whatever, 456 00:25:43.460 --> 00:25:46.069 livestock or something, right? That they're, that you've had these 457 00:25:46.130 --> 00:25:49.009 provisions in the constitution that explicitly address it and show 458 00:25:49.089 --> 00:25:52.589 some discomfort, right?

Could one be a slave owner and 459 00:25:52.670 --> 00:25:56.130 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 00:26:10.160 --> 00:26:13.160 same as you might physical property, right? 465 00:26:13.180 --> 00:26:13.960 Like a lot or something. 466 00:26:13.980 --> 00:26:14.079 Right. 467 00:26:14.099 --> 00:26:16.039 So they're, There are things that have happened, and the 468 00:26:16.079 --> 00:26:18.339 terminology and the way it was used, that sort of 469 00:26:18.380 --> 00:26:19.900 at least, even if it was. 470 00:26:19.839 --> 00:26:23.140 Tolerated or wasn't abolished, seemed. 471 00:26:22.940 --> 00:26:25.740 To reflect, going to, I think this kind of goes 472 00:26:25.759 --> 00:26:27.759 to the first question in the chat, this concept of 473 00:26:27.779 --> 00:26:31.500 natural law, that we have moral principles embedded in our 474 00:26:31.539 --> 00:26:34.240 hearts that we know, right? Is it possible that even 475 00:26:34.269 --> 00:26:36.450 some of these people own slaves or signed on to 476 00:26:36.470 --> 00:26:39.390 the Constitution in their heart, so when they looked at 477 00:26:39.410 --> 00:26:42.579 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 1026 00:55:36.469 --> 00:55:40.730 you won't miss an episode. 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