Slavery's Constitution: From Revolution to Ratification

by David Waldstreicher

Taking on decades of received wisdom, David Waldstreicher has written the first book to recognize slavery’s place at the heart of the U.S. Constitution. Famously, the Constitution never mentions slavery. And yet, of its eighty-four clauses, six were directly concerned with slaves and the interests of their owners. Five other clauses had implications for slavery that were considered and debated by the delegates to the 1787 Constitutional Convention and the citizens of the states during ratification. This “peculiar institution” was not a moral blind spot for America’s otherwise enlightened framers, nor was it the expression of a mere economic interest. Slavery was as important to the making of the Constitution as the Constitution was to the survival of slavery.



By tracing slavery from before the revolution, through the Constitution’s framing, and into the public debate that followed, Waldstreicher rigorously shows that slavery was not only actively discussed behind the closed and locked doors of the Constitutional Convention, but that it was also deftly woven into the Constitution itself. For one thing, slavery was central to the American economy, and since the document set the stage for a national economy, the Constitution could not avoid having implications for slavery. Even more, since the government defined sovereignty over individuals, as well as property in them, discussion of sovereignty led directly to debate over slavery’s place in the new republic.



Finding meaning in silences that have long been ignored, Slavery’s Constitution is a vital and sorely needed contribution to the conversation about the origins, impact, and meaning of our nation’s founding document.

Genres: History, American History, Nonfiction, Politics, Race, Read For School, American Revolution

208 pages, Hardcover

First published June 23, 2009

About the author

David Waldstreicher, editor, is Distinguished Professor of History at the Graduate Center, City University of New York, and the author of Slavery’s Constitution: From Revolution to Ratification (2009); Runaway America: Benjamin Franklin, Slavery, and the American Revolution (2004); and In the Midst of Perpetual Fetes: The Making of American Nationalism, 1776–1820 (1997). As editor, his books include A Companion to John Adams and John Quincy Adams (2013).

Reviews

[Eric_W · Rating 4 out of 5]

Even though the Constitution never explicitly mentions slavery, it's legacy is throughout. Of the 84 clauses, "six are directly concerned with slaves and their owners. Five others had implications for slavery that were considered and debated. . . " I'm not sure we'll ever escape our heritage of bondage. Even the interpretations of the opinions rendered in Heller and McDonald were grounded firmly in the history of slavery. The minority, which argued for a "militia" interpretation noted that James Madison had been urged not to ignore the right of states to form militias (several states had already enacted constitutional rights to bear arms "for the common defense,") because southern states in particular were terrified of a slave rebellion and wanted to have armed militias to respond. The majority looked to the amendments after the Civil War which applied the Bill of Rights to the states and especially the importance of providing weapons to unarmed slaves to protect themselves from rampaging white Ku-Klux-Klan-like entities.

The three-fifths rule is the most notorious of the Constitution’s nod to enshrining slavery but Waldstreicher argues that many of the property protections written into the Constitution had the effect of protecting that “peculiar institution,” as well. And since all money bills had to originate in the House, the 3/5ths clause gave southern slave holders even more power since they then controlled the purse-strings. Not only that, but it prohibited Congress from making any laws prohibiting trade in slaves for 20 years after ratification. Given their control of the House, they could be pretty sure of few impediments down the road. Rules related to property further protected slave-owners since while ostensibly protecting trade by making property laws federal rather than state, fugitive slave laws were enshrined. (As an aside, the reason why the District of Columbia became the Capitol of the United States rather than Philadelphia, was because Quakers had passed laws freeing slaves whose masters took up residence in Philadelphia and the Founders most of whom owned slaves, did not want to risk losing their property.)

The conventional wisdom is that the Founders ignored the issue of slavery assuming it might disappear gradually, yet Waldreich suggests instead that they were obsessed with the issue. They were attempting to craft a stronger federal government yet had to deal with the parochial rights of the slave states. They preserved the “peculiar institution” while making a stronger federal system. That stronger federal presence, coupled with expanding power of the northern anti-slave states, mixed with some unfortunate Supreme Court decisions like Dred Scott (although it was declaring the Missouri Compromise that really inflamed things) and Prigg v Pennsylvania which overrode states which were trying to prevent local officials from having to enforce the Fugitive Slave Act. Prigg was another nail in the federal bulwark.

Slavery was so intertwined with the economy that its abolishment could only be done on the national level. Wealth was defined less by land than by the number of slaves one owned since they were needed to work the land. Any farm state would be at a serious economic disadvantage by unilaterally abolishing slavery. In the north where industrialization was taking hold, this was less of a factor. The southern states, heavily represented at the Constitutional Convention were determined to enshrine slave rights in the new national government.

Article IV, Section 2, Clause 2 reads:
A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up, on claim of the party to whom such service or labor may be due.


Waldstreicher argues these clauses in particular were inserted to please southern slave owners as they prevented slaves from seeking freedom by fleeing to free states. The southern states used the power of the federal government to enforce their property rights (ironic in view of the Nullification Crisis of 1832.) Under Prigg the federal government was left with enforcing the Fugitive Slave Act when states such as Pennsylvania passed laws excluding local magistrates from having to do the enforcement, laws which, of course, enraged the slave states. As Calhoun wrote in a letter, “the new personal liberties laws rendered slave property utterly insecure" and was a "flagrant violation of the spirit of the U.S. Constitution."

Walstreicher argues that the Constitution’s imprecision with regard to slavery (I don’t think t was imprecise at all, it was clearly pro-slavery) led to both sides being able to claim the Constitution was or was not in favor of slavery. Given that most of the founders owned slaves and considered them property, I don’t think Justice Taney really had much choice in deciding Dred Scott in the way he did.

The assumption that southern population would grow faster than that of the north proved illusory as most immigration went to the anti-slave, industrial north thus rendering the infamous three-fifths clause moot and soon the southern states were desperately trying to add slave states to the union to retain some measure of power.

Quote: Many historians insist that the use of the word “slavery” to refer to taxes or restrictions of liberty simply came to seem hypocritical in light of racial slavery. It certainly did eventually, but this emphasis neglects the more basic, original link of British rights to property, the fact that slaves were property, and that both slavery and property were intrinsic to what colonies were all about: agricultural production and trade. . . The Americans had emancipated themselves, but in doing so had raised, not resolved, the question of slavery. On both ides of the Atlantic, people waited to see what exactly Americans meant when they said they would never be slaves.

I also recommend Negro President: Jefferson and the Slave Power

[Kim Dennis · Rating 2 out of 5]

I read this book under duress and went into it with a really bad attitude. I will be writing an essay on it, and I'm not sure I will be able to share my negative opinions in my essay to the extent I would like, so I will share more of them here. (It's a really nice outlet.)

First, I need to establish that I know that slavery is horrible and a HUGE stain on our country. Millions of people were held in bondage and treated worse than some people would treat their animals. They were tortured, raped, and degraded constantly. It is one of the hardest things I teach during the school year.

That said, I really didn't like the premise of this book. In it, Waldstreicher claims that the Revolution was fought to preserve slavery. That's likely true for some people, but certainly not all. I would say, not even the majority. Same thing with ratification of the Constitution. The only objections Waldstreicher mentioned were those people who were arguing against it because of slavery. What about those who wanted a bill of rights? What about those who felt like the president was too powerful? There were other concerns the anti-federalists had besides slavery.

Waldstreicher seems to be judging the Founding Fathers based on today's standards. They were doing the best they could under the circumstances. Many of them sincerely believed that slavery would die a natural death. The Constitution was 6 years before the invention of the cotton gin changed everything in the South. Hindsight is 20/20. It is really easy for us to look back on them and say "they should have...", or "why didn't they just..." How are people going to judge us in 230 years?

I'm glad the book is done, and I will be even more glad when my essay is done and I can get rid of the book.

[Adam · Rating 2 out of 5]

I found it extremely difficult to understand what exactly this book was arguing. The entire third chapter recounts information about the debates that took place before ratification, but does not argue its point much at all as to who had a point and who was wrong. He makes almost no judgments on that issue. He then makes very decisive statements out of the blue that seem to assume that he’s already made his point, and I am left to wonder where exactly it was.

I am convinced of Waldstreicher’s claim about how important the debate on slavery was to the formulation of the Constitution. But by the same token, the information he includes in the book convinces me that the Constitution successfully avoids protecting slavery longer than 1808, just like the Constitution's text itself suggests. I simply don’t understand what the need is for him to try to argue anything more than that the discussion of slavery was important the Founders. Why he tries to assert that the Constitution is somehow owned by slavery or tainted by it is inexplicable to me (as if it were a profound observation).

History itself seems to argue quite bluntly against his worries. In the Thirteenth Amendment to the Constitution, the Constitution specifically outlawed slavery. Why make any argument at all as to the supposed dangerous nature of the Constitution’s yoke with slavery? If it made any sense at all, I would deduce from this book that Waldstreicher was trying to argue for the position that we should go back in time and un-ratify the Constitution so as to avoid its pro-slavery implications. Perhaps he is saying that the question of whether slavery would ever be outlawed was more “up-in-the-air” than we are led to believe, living in the time after it was outlawed. If so, he does not give us any alternative suggestions as to how this could have happened. He simply demonstrates in several ways the already obvious fact that slavery was ingrained into the Constitution at least until 1808.

The Constitution was first and foremost a document defining governmental structure - not a suggestion as to the type of laws which the Founders hoped that government would pass. The book fails to address this at all, but it remains the cornerstone on which all questions of Constitutional intent must rest.

The book seeks to emphasize the ambiguity of the constitution’s language regarding slavery as proof of pro-slavery intent, but in fact ambiguity cannot prove intent. Ambiguity on the matter of slavery is as neutral a compromise as could be made, as evidenced by the fact that both pro-slavery and anti-slavery governments existed at different times after the Constitution’s ratification. The fact of silence certainly proves that the Founders failed to abolish slavery, but it also proves that they failed to secure its Constitutional validation, again, until the date on which it said this validation stopped. Isn't Waldstreicher engaging in exactly the type of perception management that it accuses the Founders of having engaged in in order to successfully ratify the document?

The book asserts that the use of terms such as “persons” (Article I, Section 9, Clause 1) and “property” (Article IV, Section 3, Clause 2) are euphemisms that betray a pro-slavery intent. Is Waldstreicher arguing that the Constitution ought to have enshrined the word “slaves” instead? What is the argument here? How could he be missing the more obvious fact that the word “persons” is correct – that the Constitution here very well might be trying to deconstruct the central lie at the heart of the institution of slavery: that they are slaves because they lack personhood? But to Waldstreicher, somehow it all works the other way around. Rather than deducing that the founders were criticizing the word “slave” for being a euphemism for “person,” he deduces that they meant “person” as a euphemism for “slave.”

“The founders’ Constitution simultaneously evades, legalizes, and calibrates slavery, as it does so much else, including its very raison d’être, the creation of a stronger federal republic. No more than it does slavery, the Constitution does not mention nationhood – for fear of offending the localists – rendering it all the more an ideal national charter for soft selling its version of a modern nation-state.” (page 101)

Waldstreicher here seems to be suggesting that there was no compromise going on at all: rather, a conspiracy in which all the founders were complicit.

“In the process [of ratification], [slavery] was not so much forgotten as contained.” (page 102)

Is the containment of slavery a bad thing? Could it have been abolished or curtailed instead? The book makes no venture to argue so.

“The business of slavery had not been left unfinished so much as it had been leveraged.” (page 103)

By whom? Not once does the book offer any clarity as to which delegates are to blame in particular. I wonder which delegates Waldstreicher would have considered blameworthy if he had attempted to do so? The Southern delegates, perhaps? Perhaps the Yankee/Carolina proslavery alliance he elsewhere refers to?

“Franklin put it most eloquently: ‘The opinions I have had of its errors, I sacrifice to the public good.’ Who could say this constitution was not the best human hands could make?” (page 103)

Perhaps Franklin would say that - in the quote that was cited just now?

“Silence and compromise became virtues.” (page 104)

This seems to me to be the closest Waldstreicher ever comes to making his intentions clear. Waldstreicher is angry – very angry – that the antislavery delegates didn’t somehow forge a more antislavery deal with those sympathetic to slavery. He clearly believes that the antislavery delegates are the ones to blame for this. However, he offers no evidence of any points at which they could have held their ground to achieve better results whatsoever. He clearly does not believe that the antislavery delegates are as antislavery as they could have been (notwithstanding their cited opinions on the matter or the historical evidence which included slavery’s abolition). One might be forgiven for wondering if he has any similar bones to pick with the proslavery delegates, given how much time he spends deciphering the various shades of evil to be found in the antislavery delegates’ profound “silence and compromise.”

On the contrary, the fact of compromise could just as easily demonstrate that things go the other way around – that the Constitution’s text must be considered anti-slavery insofar as it uses words like “persons” and “property” while failing to otherwise justify the use of these terms in relation to each other. The book provided more than enough proof that the belief among many of the Framers was that slavery was at odds with the Constitution’s aims. If words such as “persons” and “property” were mere euphemisms for slavery, how can this not be considered subversion of the opposite sort? Can this not instead be considered a willful dilution of pro-slavery intent? The use of the word "persons" in the context of slavery did turn out in history to be the Achilles heel of the pro-slavery understanding of the Constitution. The three fifths compromise and the fugitive slave clauses both use the term “persons” rather than “slaves.” Is he trying convince us it would have been better for the antislavery cause if they had ratified the term “slaves”? The book makes no effort to give us any clues as to whether alternatives existed.

The book’s biggest problem is in formulating a concept of what the Constitution is which exists apart from the actual legal text which the thirteen states ratified. The book does not succeed in escaping the conundrum of this discrepancy except by proposing to tell a narrative history that it hopes the reader will accept in much the same way it accuses others of doing in their acceptance of the supposed “ideological” view it is supplanting (which has similar issues and is worth criticizing). The book provides evidence of many anti-slavery Framers expressing fears that the Constitution would be misused, but the fact that those same men also pushed for its ratification might help prove that their fear was mixed with hope. It might suggest a willful allowance for the shape of government to be defined legally by the states through further debate.

To Waldstreicher, it just proves that they were lying.

I do not think Waldstreicher’s argument about the Constitution being “slavery’s” Constitution was proven. And I do not think for a moment that anyone involved considered the Constitution as originally ratified to be the United States’ eternal, unchanging authority on which laws could be passed through its structured political means. Amendments to the Constitution were passed almost immediately after its ratification to address numerous significant issues called the Bill of Rights.

The book is clearly arguing that it was a willful misinterpretation of the Constitution that allowed for slavery’s abolition. Lincoln and Douglass were not taking advantage of purposeful ambiguities – they were working against the grain the Founders intended. For what, indeed, other than proslavery sentiments could inspire them to refer to slaves in euphemistic terms such as “persons”? The series of toasts made by Northern black men in the conclusion is framed as being a form of willful subversion of the Constitution’s intent, on the chance that future freedom might be secured by such examples of shrewd verbal maneuvering (another way of putting it is that he is accusing those men of deception). It is yet another example of the book’s insistence that in so many cases, you simply cannot take people at their word. I am inclined not to take Waldstreicher at his word.

If he had argued merely that the issue of slavery was integral to the discussion of national identity, I would have agreed, because the book provided considerable evidence of that.

[Kris · Rating 4 out of 5]

Waldsreicher argues that the Constitution was a pro-slavery document. The Constitutional Convention participants debated it hotly behind closed doors, but in the end most presented a united front to the public on the desirability of ratifying the constitution. Most important of Waldstreicher's critiques - which aren't new, though he gathers all of them up in one place here - is that the 3/5s clause gave a lot of power to the Southern states, in both their representation in the House of Representatives, their electoral votes for president, and, indirectly through the president, in the appointment of Supreme Court Justices.

A very good, succinct book. Perhaps argues a bit too strongly that the Constitution was pro-slavery, but nonetheless makes it clear the role that slavery played in the convention, the document, and the ratification process.

[Barb · Rating 3 out of 5]

Probably a 3.5, but I've gotten out of the habit of reading books like this since I majored in history in college. Back then, this would've been great, in no small part that the actual text is only about 100 pages. Good job, David Waldstreicher!

I was drawn to this book because of the aforementioned history major; in fact, my undergrad thesis was titled "Antislavery Rhetoric in the Early Republic" and yes, I DID get an A on it, thank you! Ultimately, my conclusion was the opposite of Waldstreicher's; I thought the founders did what they could to check the institution of slavery, whereas Waldstreicher (persuasively) argues that the Constitution deepened the hold of slavery on the United States. He focuses on how New England states worked with the deep South to compromise on slavery, and he writes a lot about how allowing the importation of enslaved people until 1808 would allow the institution to become even more entrenched. I'm always interested in reading about how this generation of Americans, even the ones who were enslavers, disliked slavery but didn't stop it--and the obstacles in place at the time.

There's good information in here, but it is dry--it took me quite a while to get through this, as short as it is. In any case, I'm glad I read it.

[Josiah · Rating 2 out of 5]

"The Constitution never mentions slavery. The word does not appear. And yet slavery is all over the document. Of its eighty-four clauses, six are directly concerned with slaves and their owners. Five others have implications for slavery that were considered and debated by the delegates to the 1787 constitutional convention and the citizens of the states during ratification. This is many more words, with greater implications for slavery, than contained in the articles of confederation, the previous, notoriously weak national charter drafted in 1776 and passed eventually by the continental congress. All but one of these clauses protects slavery; only one points toward a possible future power by which the institution might be ended. In growing their government, the framers and their constituents created fundamental laws that sustained human bondage."
- David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification.

Let me preface this review by stating that I did not choose to read this book. I have a long pile of books I need and desire to get through, this is not one of them. Instead, this was a required read by one of my college classes.

***

The constitution is a very old document. And being such it has had a large amount of work written on it. Some have honored and glorified it. Others have questioned it and still, others have written books about how terrible it is and how much they hate it. To put it short, everyone has an opinion on it. One of the most debated parts of it is its role in slavery and this is what this book addresses.

Upon reading the title of this book, one can essentially see where it is going and what it is going to argue. Waldstreicher is a historian and professor at City College in New York. He used to work at Temple University. He has helped edit the John Quincy Adams diaries and is involved with the 1619 project (from what I can tell). On the cover Annette Gordon-Reed recommends his work which also gives hints as to what his opinions will be. Needless to say this guy is not probably going to agree with me on anything regarding the Early-American period.

***

This book is essentially arguing a pro-slavery view of the Constitution. To quote Waldstreicher, the Constitution, written in 1787, was “nominally neutral but operationally pro-slavery.” He states that this was due to the power it gave the Southern slaveholders and can be further proven by the discussion and arguing of Northerners or New Englanders and the lack thereof by southerners, supposing that the southerners shut themselves up because they already got what they desired. This is, of course, one of the many reasons he has but I think is his best.

***

Before I go any further, I think that it is important to back up and understand the different views of the constitution as created in 1787.

There are about three views that people normally use when interpreting the constitution regarding the slavery question. Number one is what a lot of scholars like to nickname the Garissonian view. This view was first popularized by William Lloyd Garrison. Garrison was a leading abolitionist in the years preceding the Civil war and his newspaper “The Liberator” pushed some of the most radical views of the day. He called the constitution a “covenant of death” and “an agreement with hell.” He pushed his view towards arguing for a dissolution of the union (and, therefore the constitution) and called for a new nation made up of the non-slaveholding states. He did this under the famous slogan: “No Union with Slaveholders.”

The second popular view of the original constitution can also be seen in the abolitionist camp and has come to impersonate Lincoln himself in many ways. Yes, ol’Garrison was too radical for even Lincoln. The anti-slavery view of the constitution was used for a different purpose than the pro-slavery argument. Rather than dissolution, it was used for territorial expansion arguments, as well as, later used by some to defend the actions of Lincoln and the Republican party during the war. While one could easily say that the presence of the 3/5th clause, the fugitive slave clause, and the 20-year allowance for the slave trade could make these arguments null and void, nonetheless the Anti-slavery position has its arguments and is worth looking at.

Many of the proponents of the anti-slavery view start by stating that the word slave or slavery does not graze the document. Further that the proposed ending of the slave trade in 1808 proves that the original intention of the founders was for a world that was purged of slavery. To thwart other arguments they state that the preamble was good enough to voice the opinion of the whole piece when it declared the federal government had the power and authority to “secure the blessings of liberty” (Of course, this argument ignores the differences between regions in their definition of the word liberty). This view has come to embody the Republican party and neo-cons today. Among others, even Frederick Douglass held this view later in life.

The third view is, I believe the more traditional and the one I think I currently agree with. It basically states that the constitution was neutral in its take on slavery. To the original framers' minds, the constitution held that the legislators could not positively or negatively make any laws on slavery. This third view holds that the delegates of the committee (including the anti-slavery ones) saw having a union itself as more important than abolishing and eliminating slavery. They did this for the same reason many people were against secession throughout the years between the two major wars because being apart made the states more vulnerable to enemies and economical issues. The constitution affirmed that Massachusetts could do what it wanted and Virginia and South Carolina could do what they wanted. It left it up to the states.

***

With those thoughts in mind, what is the overall argument of this book and Waldstreicher?

To start at the beginning of the book Waldstreicher gives his comments on the views of Gordon S. Wood and Bernard Bailyn on the constitution in which they view the constitution as something that preserved the ideals of the revolution, that it pushed for a more representative government and took a realistic turn to ensure “the survival of the republic on the national as well as state and local levels.” In other words, slavery was a side issue and not the most important to the framers. But this goes against this author's views. To Waldstreicher slavery is the issue. It permeates the document. At the beginning of this work, one can easily see that this book was written to beat the “republican” argument, which is somewhat of an anti-slavery argument. Waldstreicher states that “the story of the constitution as a last stage in the development of revolutionary republicanism is incomplete. It needs to be retold.” He, therefore, states that he attempts to tell a narrative that gives slavery a more realistic presence, that it was a constitutional matter. Is this completely wrong? No. I don’t think so. It was an issue but it wasn’t the biggest. Waldstreicher says that his work is an attempt to propose “a solution” between the Republican and the more liberal Beard or Garrisonian views. In it, he hopes to prove that “slavery was as important to the making of the constitution as the constitution was to the survival of slavery.”

***

This book has three chapters. In the first Waldstreicher tries to set up the importance of slavery in the colonial and during the revolutionary wars. This chapter quickly runs through the colonial and revolutionary war while putting importance on statements and writings that mention slavery by both England and the colonials. He argues that statements like these led to the rise of the discussion of slavery and lifted it to a central topic in the debate over colonial rights. Overall in this chapter, he tries to give a narrative of slavery (I’m not gonna lie this whole “narrative” he wrote was hard to get through), during the revolutionary war period, as a political issue.

The second chapter goes into the constitutional convention and the author discusses how slavery was handled during this period. Waldstreicher again focuses on all the talk there was on slavery and uses this as an argument to say it became the issue. He briefly admits that slavery, going into the meetings, was not on the agenda of these men. There were more important issues such as representation and state sovereignty. But, when the delegates and debaters went into the meetings, Waldstreicher states, "the constitutional convention became one of working not only around slavery but through it, to re-create republican government in a national union." He then goes mainly over the 3/5th clause and tries to best argue, using the words of many there, that slavery was the most important discussion in this convention. Doing this it just seems to me that he is cherry-picking his sources and overlooking the words of other delegates. Overall I think that Waldstreicher misses the main point of these slavery talks.

In the third and final part, Waldstreicher goes over the thoughts and protests of people after the ratification. This is when we can fully see his argument. He freely admits in this chapter that “the founders’ constitution avoided theorizing slavery as right or wrong…as something that could be legislated or something that could not, because they could not agree on these things. The [constitution] allowed for different possible results: slavery’s continuance, spread, or eventual end.” Then comes I think his main argument. He states that what makes the constitution pro-slavery is that it “enacted mechanisms that empowered slaveholders politically, which would prevent the national government from becoming an immediate or likely impediment to the institution.” This result allowed for “slavery’s continuance and protection in the present and near future.” Then comes his quote that this makes the constitution nominally neutral but operationally pro-slavery. I think that this in some ways makes sense but in others doesn’t. Rather, Southerners already believed that they had the right and did not believe that the constitution needed to say anything against or in favor. This also could help provide an answer to why Northerners did not want slavery allowed because it helped them if it wasn’t and would lessen the power of the South. Again, regardless of the outcome, we come back to a word game. I believe the talks were more about federal power, representation, and politics. Waldstreicher believes it was about slavery.

***

Regardless of where you stand on the issue. Whether you are in the pro-slavery, anti-slavery, or neutral camp (or something else), one could have a legitimate question by just asking: Why does it all matter? The 13th amendment thankfully makes all these discussions obsolete (except for the most radical of leftists today), so who cares?

I think that this argument is important for a bigger reason. It's about how we remember the people and constitution that founded our country. The pro-slavery is mainly leftists who hate America’s founding generation. Likewise, the anti-slavery group is mainly neo-conservatives who want to defend themselves to the max against the left. I try to see men as they were and how they probably viewed the document. In the time of the constitution, most, if not all, of the men were easily racist to today’s standards but that does not mean they did not have their own great points and should be honored for what they did and how they created this country.

That being said, I would like to end this review by stating that if you want to read this book, be prepared to spend hours thinking and rereading because it's not the best written or formulated. My rating of it is a reflection more of the arguments but also is for the writing style.

***

I would also like to end by apologizing to anyone reading this ramble. This review is 10 times too long and is more for my own reflection when thinking of these issues in my class and also in my day-to-day life.

[Mike Anastasia · Rating 5 out of 5]

As a student of Dr. Waldstreicher's, I am not shy to say that this book is a wonderfully succinct account of the banality of attention the Founding Fathers allotted the institution of slavery in early American written law.

The Constitution dances around the issue of slavery half a dozen times from the prelude to the amendments, but the world 'slavery' is never used and its regulation is certainly not included. Historically speaking, this is curious because most of the signers of the Declaration and the Constitution were not slavers, so we must look further into their decision (and Waldstreicher argues that is was a clear-cut, well defined decision) to understand what's really going on.

Then, as now, the rich trouble themselves to find a way to make the poorer masses do what they want without paying them to do it. Our country's founders debated heavily over the concepts of free trade, laissez faire and inclusive economics and came to a conclusion that mixed all three. We are a republic, but we are also democratic. Similarly, we are a free market with government regulations ensuring tranquility and (supposedly) fairness.

The founders, for the most part, wanted to give power to states (as opposed to the nation, because the was too monarchic) and, along the same lines as that, individuals within those states. For that reason, things like slavery (but also prostitution, monopolization, taxation and others) were left out of the NATIONAL constitution because they believed these were issues that states should makes decisions on separately.

Unfortunately, as we know, most states immediately abused that power. Enter the federalists and anti-federalists. These two groups fought over everything from law to economics to centralized banking and, in some ways (others not so much), still do under the newer names of republicans and democrats. It's a war that's been going on since this piece of paper was signed and it's unlikely to change anytime soon.

But back to Waldstreicher. David argues that the founders purposely left slavery out of the constitution because they wanted states to handle the question themselves, but I don't think that means he literally thinks the founders purposely wanted slavery to stick around. As far as I know from talking with him, it is his opinion that the founders were relatively undecided on the situation, at least until they began to see the segregation between states that eventually flowered into the Civil War.

If you're looking for a study of apathy and exclusion regarding the constitution, I can't think of a better option. In just over a hundred pages, Waldstreicher proves that our nation was built on the backs of men and women who, in an (backfired) attempt to give smaller groups of people power to govern themselves, were left out of the nation's legal cornerstone.

[Ms211 · Rating 4 out of 5]

David Waldstreicher. Slavery’s Constitution: From Revolution to Ratification. (New York: Hill and Wang. 2009.)

 

 

                Waldstreicher lays out the historiography of United States constitutional history to illustrate what he brings to the discourse at the famous table of American historians, like Gordon Wood and William Freehling. Reading his work on Constitution Day 2022 was fitting and allowed this reviewer to ponder on the recent Mansfield moment of the current U.S. Supreme Court. The recent Court decisions, like Dobbs and Bruen, revert to strict U.S. Constitutionalism and judicial activism. Waldstreicher’s monograph reviews Mansfieldian moments throughout early Constitutional history. The irony of the recent U.S. Supreme Court decisions appears to be what Jefferson warned about as judicial activism.  Waldstreicher reviewed the disregard for precedence in a critical case brought by enslaved James Somerset to the Chief Justice of the Court of King’s Bench, Lord Mansfield who gave Somerset his freedom based on strict parliamentary law. [1]

Waldstreicher’s work on Mansfield decision is essential to his proslavery Constitution argument by reviewing what he calls, Mansfield moments. Waldstreicher argues that slavery was as crucial to the making of the U.S. Constitution as to the later survival of slavery within the United States. [2] No work on the Constitution can be without legal history and precedence. Waldstreicher starts the piece with slavery as ubiquitous and the pre-revolutionary brief overview of how the metaphor of slavery as a loss of political liberties had been part of the British colonies from the start. [3] The Mansfield moment becomes a running thread throughout Waldstreicher’s political and cultural history of the makings of the Constitution and its detractors, like George Mason.

  Waldstreicher’s monograph reviews how the U.S. Constitution also served as ideological protection from tyranny in the fledgling federal government. The ideology of slavery and the true nature of people as property is eloquently explored within Waldstreicher’s work. Waldstreicher’s first chapter reveals how slavery, real and imagined, fueled an escalation to the Declaration of Independence. [4] Waldstreicher reviews how the North and South came together, which could have been fully explored concerning the theoretical views of slavery. Waldstreicher’s early ideas are later fully expanded by Parkinson’s recent book, Thirteen Clocks, which Waldstreicher endorsed on the back cover. [5]

            Moving quickly through the aftermath of the American Revolution, skipping through the Articles of Confederation, and to the heart of the debates on the writing of the American Constitution, Waldstreicher has limited his readers to knowledgeable political historians of the early United States. In the subsequent chapter, Waldstreicher outlines the two great compromises of the Constitutional Convention and their relation to slavery to show that the “founders used slavery to limit government while allowing slaves to be governed both locally and nationally.”[6]

Waldstreicher’s last chapter explains the ratification of “Slavery’s Constitution.” His argument on slavery reviewed the ideological struggle of anti-federalists versus federalists. But for Waldstreicher, this ideological struggle becomes more concrete on the side of a proslavery Constitution without the words even being written within the document. “The Constitution enacted mechanisms that empowered slaveholders politically, which would prevent the national government from becoming an immediate impediment to the institution.”[7] Ultimately, Waldstreicher’s review of the men who wrote against this proslavery Constitution, like Hugh Hughes, became what we know now as the American countertradition that the Constitution is not America’s holy text nor the source of individual freedom.[8] Waldstreicher’s slim volume that the Constitution is proslavery is powerfully argued, and his sources are well known and traceable by any fellow historian to follow.


[1] David Waldstreicher. Slavery's Constitution: From Revolution to Ratification. (New York: Hill and Wang.2009.) 39.

[2] Waldstreicher. Slavery’s Constitution. 8.

[3] Waldstreicher. Slavery’s Constitution.33.

[4] David Waldstreicher. Slavery's Constitution: From Revolution to Ratification. (New York: Hill and Wang.2009.) 44.

[5] Robert G. Parkinson. Thirteen Clocks: How Race United the Colonies and Made the Declaration of Independence. (Williamsburg, VA: Omohundro Institute of Early American History and Culture; Chapel Hill, NC: University of North Carolina Press, 2021)

[6] David Waldstreicher. Slavery's Constitution: From Revolution to Ratification. (New York: Hill and Wang.2009.) 102.

[7] David Waldstreicher. Slavery's Constitution: From Revolution to Ratification. (New York: Hill and Wang.2009.)

114.

[8] Waldstreicher. Slavery’s Constitution .150.

[Gordon · Rating 4 out of 5]

This is a book about a virtually forbidden topic: how slavery was enabled in the US constitution of 1787. It required a Civil War and a constitutional amendment (the 13th, passed at the end of the Civil War, in December of 1865) to end it.

The first constitution – the Articles of Confederation – had created the de facto basis of a central government in 1777, providing the foundation for the Continental Congress in the early phase of the Revolution. The federal government that resulted was relatively weak – at least, so historians have deemed in the past two centuries or so. And so deemed many of those at the time – called “federalists” – who wanted a stronger government that could to raise its own taxes (instead of depending on money from the states), pay off war debts, conduct a more aggressive foreign policy, regulate inter-state commerce, impose uniform import tariffs, and so on.

In response to this, the Constitutional Convention of 1787 was held in Philadelphia behind closed doors (and even closed windows, despite the summer heat) to consider how to create a stronger federal government. There were many interests to be accommodated to make this possible, but the most uncompromising faction was comprised of slave-holders. One of the reasons for this closed process was precisely to enable the open discussion of inflammatory subjects such as slavery. The lines of division were clear: Northern delegates, whose states’ economies did not depend on slaves and whose populations contained few slaves, mostly opposed slavery. Southern delegates (especially those from the Deep South, notably South Carolina and Georgia) drawn from the Southern elite, whose wealth depended on slavery, made it clear that without a continuing legal basis for slavery, there would be NO new constitution.

The most populous state in union, Virginia (much larger in area then than now), was slave-holding, as were Maryland, North Carolina, South Carolina and Georgia – five of the 13 states. In the wake of the revolution, homesteaders and their slaves were flooding into the newly opened areas of Kentucky, Tennessee and the southern hinterland. It was by no means clear whether most of the new states to be created west of the original 13 colonies would be slave states or not.

Northern delegates such as Benjamin Franklin, Gouverneur Morris and Alexander Hamilton opposed slavery, but not as forcefully as the southerners supported it. The reasons for this are similar to the issues of government regulation today. Given a majority who holds a particular position, but weakly, and a minority who holds the opposite opinion, but strongly, the passionate minority wins! For the southerners, slavery was central to their wealth, and the strengthening of the Federal Government would only be to their benefit if it helped their international trade while leaving their slave “property” intact. These were the prerequisites for a new Constitution.

The inevitable compromise was a strengthened Federal Government, but one that would leave slavery in place in the southern states. That compromise also gave the south the added representation in the House of Representatives from counting slaves as 3/5 of a white man. In effect, every southern white’s vote counted for 60% more than a northern white’s. Similarly, although the President was to be directly elected, in principle, the process required the intermediary of the Electoral College, where numbers of electors were apportioned according to the same formula, once again giving southern whites disproportionate weight. Oddly enough, it was this antique institution, created to give more weight to slave-holding states, which gave George W. Bush the White House in 2000 – he lost in the popular vote, but won in the Electoral College. This model isn’t exactly democracy, but for that matter neither is the Senate, which gives two seats to every state, regardless of population. The Senate too is another antique relic of the Constitutional Convention, designed to keep majority rule in check – with, of course, the House of Representatives being the other legislative body that needed to kept in check, because its members were apportioned based on population and thus it was feared that it would be too “democratic”.

The slave-holders Convention delegates made one notable concessions concerning slavery, that the importation of slaves would end in 21 years, in 1808. But since 21 years was a long time, and natural increase provided large numbers of new slaves anyway, this was not much of a concession. And, the southerners also got added support for slavery in the form of laws that supported the recovery of their escaped “property” from free states to which slaves had fled. Furthermore, the new Federal government was to be committed to helping states put down insurrections within their own borders – with slave rebellions being a constant threat, this was a key benefit of a stronger Federal government for the slave masters.

The protection of slavery in the Constitution of 1787 was common knowledge at the time – in fact, it was an essential prerequisite for the ratification of the Constitution – but that fact is today almost forgotten. Why? First and foremost, because it does not fit with our national myth of the Revolution and the fight for democracy. Second, because it’s a long time since the pro-slavery elements of the constitution were eliminated. That happened in the wake of the Civil War (notably the 13th Amendment), although the Civil Rights Act in the 1960’s was a necessary further step to finally do away with the legal framework that had kept Southern blacks in a state of second-class citizenship even 100 years after the end of the Civil War. Third, because the constitutional delegates were smart enough to recognize that the Constitution would be a lot more acceptable to northerners if it gave legal status to slavery, but without ever mentioning the word “slave” explicitly – nonetheless, that’s precisely what was meant by phrases such as “persons held to service” and that’s also precisely the reason for the strange popular voting formulas and institutional oddities such as the Electoral College. Slaveholders didn’t care if slavery was ever mentioned, if that silence salved the consciences of the Northerners while leaving slavery intact.

Once the deed was done, even the northern convention delegates who had fought to remove slavery saw great advantage in keeping their reservations to themselves. They were not about to torpedo the new Constitution in order to try to fight the debate all over again. As Franklin put it: “The opinion I have had of its errors, I sacrifice to the public good.”

However, ratification of the new constitution still proved to be a close-fought battle, dragging out over the better part of a year before it was finally ratified in 1788 by the ninth out of the 13 states – nine states being the minimum threshold for ratification. Even in the two cradles of the Revolution, Massachusetts and Virginia, the margin of victory in the ratification vote was very slim. Once that victory was achieved, the author suggests that the Bill of Rights, enacted by the new Congress as one of its first acts, was a sort of consolation prize – a means of allaying the fears of the “anti-federalists” and abolitionists who had opposed the new Constitution.

The author summarizes how slavery and the whole principle of a strengthened Federal Government were both subject to similar forces at the Constitutional Convention: “The clauses that relate directly to slavery are not exceptions to the Constitution’s remarkable combination of precision and vagueness: they epitomize those qualities. The founders Constitution simultaneously evades, legalizes, and calibrates slavery, as it does so much else, including its very raison d’être, the creation of a stronger federal republic. No more than it does slavery, the Constitution does not mention nationhood – for fear of offending the “localists” — rendering it all the more and ideal national [vehicle:] for soft-selling its version of a modern nation-state.”

The book isn’t exactly a page-turner, unless you're a US constitutional history buff. It’s a short book that might have benefited from being even shorter. Overall, this is a very good book about an issue that continues to leave its mark in American society and politics today.

[Brandy · Rating 2 out of 5]

I read this for my masters program course and am currently a US History teacher. I found it very difficult to focus on, having to reread sections after nearly falling asleep. While the premise of this particular book focuses on the Constitution and the connection to slavery, I felt Waldstreicher offered little new analysis or opinion throughout the book. The prologue was the best part of this book. Waldstreicher begins with the observation that “The Constitution never mentions slavery. The word itself does not appear. And yet slavery is all over the document.” He continues to focus on aspects of the constitution which elude to slavery but do not specifically state it including the 3/5 compromise. After the prologue he recants the debates, constitutional convention, federalist papers, etc to support his views. Yet rarely offers an analysis or opinion during these chapters. Honestly an essay of his prologue of 17 pages is all I needed to read, the rest of the book was a bore.

[Ean Carr · Rating 3 out of 5]

I had to read this book for a class. It’s not that long of a read. I learned some new words and about the process of ratifying the constitution. If you’re new to this area, this book is worthwhile.

I don’t think Waldstreicher does a good job at making his point; it’s unclear what he is trying to convey frequently. For example, he makes the idea of the “Mansfieldian Moment” an important idea in the book. I still don’t know what he was trying to say when he said that. Just use plain English. There is not need to make up a word to communicate that point.

If you’re in my shoes and have to read the book, good luck.

[Danielle Hassel · Rating 5 out of 5]

Had to read this for American History. Not excited to pick up another book, but let me say this really conveys a whole new perspective. It is said that slavery was fought by officials to be abolished. For example, George Washington freeing his slaves. This happened far before any change occurred. He started a movement within the colonies, but not the ‘empire’. Fascinating. As you continue reading, it almost seemed as they found every loophole to fight the abolition of slavery. Quite informative with engaging conversation. You see a new perspective as Waldstriecher includes many primary sources to support the text. If you like history, but not reading straight from a textbook, I recommend.

[Lexi · Rating 3 out of 5]

While many passages had to be re-read in order to retain the "history class"-like information, this book was interesting in that it highlighted how issues facing the north versus the south today can be traced back to the founding of the country. The more things change, the more they remain the same.

[Anna Grant · Rating 4 out of 5]

Thorough examination of the making of the USA. Most interesting - the Constitutional Convention and incredible politics of James Madison and Alexander Hamilton.
Waldstreicher breaks down how the specific language used in the constitution would ultimately lead to Civil War, not the system of slavery itself.

[Matthew Rohn · Rating 4 out of 5]

Good book. It has a clear argument and is focused and engaging to read. It's one of those books that's weird to assess because its argument became very influential quickly and so is now baked in to a lot of other work about the topic

[Brian · Rating 3 out of 5]

An interesting read.

[Beverley · Rating 4 out of 5]

Well thank you to the men writing the Constitution for kicking the can down the road.

[Nya · Rating 2 out of 5]

this book is long and boring and david waldstreicher really couldn’t help himself from slipping the n word in here once or twice huh

[Nrosenberg · Rating 5 out of 5]

A life changing book. Should be required reading to be a citizen. Waldstreicher carefully deconstructs our country’s founding and how the United States was founded on white supremacy.

[Marie]

read for grad school

[Tay Orton · Rating 2 out of 5]

I expected a lot more from this novel. The author is repetitive and does not seem to care about the interest of his readers.

[Clayton · Rating 2 out of 5]

I only had to read the prologue and chapter 1. I personally found the book murky and hard to follow, but then again I did not completely finish the book.

[Cathy · Rating 3 out of 5]

Read for a college class about The New Nation

[Poland · Rating 3 out of 5]

3.75

[Danielle Ferraro · Rating 3 out of 5]

3.5

Chapter three does not align with the first few chapters and I’m not sure how I feel about the narrative history choice. However—important read

[Jacob Vasicek · Rating 3 out of 5]

usa bad

[Sydney Moore · Rating 3 out of 5]

historians write books that arent boring and not overloaded with jargon challenge

SECOND TIME READING EDIT: honestly, not so bad

[Joseph Stieb · Rating 3 out of 5]

Part of a broad historiographical push to de-mythologize the founding era and the founders themselves, this short book argues the Constitution was basically a proslavery document that went beyond sectional compromise to offer numerous protections for slavery that drew the lines for American politics for the next half century or more. Focusing on the Constitution's protections of property rather than liberty, Waldstreicher shows that while it uses coded or euphemistic language, the Constitution put off bans on the slave trade, established a de facto fugitive slave law, and allowed slaves for count for representation but not for poll taxation. These protections were put in place because the non-slave states could not create a union without acknowledging the slave states' interest in slavery. The protection of state power in this federalist system further preserved slavery from centralized government action. The US was founded in part on an agreement to silence discussion and debate over slavery in favor of expansion and union.

I think Waldstreicher has a point, but he clearly overstates this position. The Constitution as a whole reflects the ambivalence of the founders towards slavery, even among those (Jefferson, Madison, Washington) who owned slaves but wanted and hoped that it would die out. They compromised on slavery in favor of union because they wrongly assumed that it was becoming economically faulty and that the moral compass of the nation had shifted against it. The fact that they did not mention slavery can be read as avoidance of something most Americans acknowledged as wrong and thus an act of cowardly political compromise. However, the fact that the founders did not use the term slavery suggests that most of them disapproved of it, were looking for ways to contain or erode it, and did not want the founding document of the nation to have clear or normative endorsements of slavery. This sunnier interpretation of the Constitution's "silence" on slavery is just as valid as Waldstreicher's negative view. Waldstreicher also fails to show why we should see the Constitution's protections for state government as an explicit protection of slavery rather than an acknowledgment of the political realities of the time, such as the borderline non-existence of a federal government and the tendency of all states (not just slave ones) to jealously guard their autonomy.

I rarely say this, but this book should really be about 50 pages longer. Waldstreicher needs to spend more time in various areas, including his dubiously determinative claim in the conclusion that the vaguely proslavery compromises of the Constitution made the Civil War inevitable. He basically washes out 80 years of history and major developments in the country with this statement.

[Cherisa B · Rating 3 out of 5]

What we’ve been taught about our Founding Fathers is a lot different than what’s written about them here. Painful and saddening, the care and artfulness of protecting slavery without using the word, giving representation in Congress based on 3/5 of a black person to white men that gave them no human rights is just brutal.

[Timothy Finucane · Rating 3 out of 5]

A more detailed look at the role slavery played in the creation of the constitution, but a rather quick read. The book breaks down things into three sections: a look at how things exist under the Articles of Confederation and how slavery affects that; a discussion of the great compromises during the constitutional convention; and a look at the peoples response to those compromises during the ratification process.

While the book does a good job covering the major points of the argument that slavery influenced the great compromises that constructed our constitution, it is a subject matter that deserves an even greater dissection. It does appear that the writer has created a very good list of resources to make a more in-depth investigation of the matter.