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Slavery and the Constitution


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National Affairs

Michael P. Zuckert

Spring 2023

The topic of slavery and the founding is a controversial one these days, as anyone who is awake — or "woke" — will realize. The controversy erupted about three and a half years ago, when the New York Times published the 1619 Project — a series of essays claiming that 1619, the year the first slaves arrived in America, was the defining year in American history.

The project's authors asserted that our history has hinged on the fact and experience of American slavery, and that the nation has been chiefly characterized by racism. This claim was by no means universally accepted: Many voices rose to claim 1776, the year of the American Revolution and the signing of the Declaration of Independence, as the date that truly points to the meaning of America as a nation committed to rights, liberty, and equality.

The debate thus set into motion was not a new one, but rather a continuation of an ongoing dispute between two groups of historians: neo-Garrisonians, named for the famous 19th-century abolitionist William Lloyd Garrison; and neo-Lincolnians, named for the great 19th-century president Abraham Lincoln. Near the core of that ongoing clash lay the U.S. Constitution. Garrison, the abolitionist, called the Constitution a "covenant with death" and an "agreement with hell" because he believed it supported the institution of slavery. Lincoln, on the other hand, cautioned that the Constitution "must be maintained, for it is the only safeguard of our liberties."

Each of these two divergent perspectives on the Constitution perceives something important, but each misses something, too. The Constitution did in fact lend legal support to slavery in the states; it was not, as some neo-Lincolnians would have it, an unambiguously anti-slavery document. But, contra neo-Garrisonians, the Constitution did not grant national legitimacy to slavery, for this peculiar institution could not be reconciled with the republic's rights-based political theory.


It is not possible to rehearse here in detail the many debates between the followers of Lincoln and Garrison, but a brief summary will be useful. Two disputed issues stand out. First, how favorable was the Constitution toward slavery? And second, on what motives did the founding generation act?


The strain caused by the diremption between legality and legitimacy ultimately proved too great for the political system to bear. The result was the Civil War, which in theory settled the issue in the 13th, 14th, and 15th amendments to the Constitution.

As mentioned above, the Constitution that left the hands of its framers was drastically incomplete, largely because of its character as a federal constitution. The Reconstruction amendments were understood by their authors to achieve the completion of the Constitution by producing a political arrangement in which legitimacy and legality finally converged. That convergence involved — indeed, required — a much more forceful break with the federal principle than the original constitution made. At the same time, all it took to free the Constitution from its entanglement with slavery was the application of the legitimacy principles expressed in the Declaration of Independence to the states.

The completion of the Constitution was not in itself sufficient to overcome the legacy of slavery, which shows once again that the Constitution was not the main instrument for the establishment or maintenance of slavery in America. The document was thus neither a covenant with death nor a bulwark against slavery. It was admittedly imperfect, but not evil. Given the task of constitution-making as the founders conceived it, and given the mark that history had already made on the continent, it was what it had to be.

Michael P. Zuckert is the Nancy Reeves Dreux Professor Emeritus of Political Science at the University of Notre Dame and clinical professor at Arizona State University.

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