New Constitutional Society

New Constitutional Society

The New Constitutional Society was established in January 1910 "in order to unite all suffragists who believe in the anti-Government election policy, who desire to work by constitutional means, and to abstain from public criticism of other suffragists whose conscience leads them to adopt different methods".


New-York Historical Society Acquires Rare First-Hand Notes of the Constitutional Convention

New York, NY, May 31, 2011—At an auction held on Friday, May 20, at Sotheby’s, the Chairman of the New-York Historical Society, Roger Hertog, purchased the Constitutional Convention notebooks of John Lansing, Jr., a New York delegate to the 1787 Philadelphia Convention. Mr. Hertog has announced that he will donate the exceptionally rare documents to the Library of the Historical Society.

The New-York Historical Society plans to digitize the Lansing papers in their original format to share with scholars everywhere. The documents will also be displayed in an exhibit when the Historical Society’s galleries re-open in November 2011.

“With this magnificent gift, Roger Hertog has secured the New-York Historical Society’s place of privilege as one of the most important repositories in the world for scholarship and teaching around constitutional history,” said Louise Mirrer, President and CEO of the Historical Society. “Together with the notes on the Convention written by South Carolinian Pierce Butler—part of the Gilder Lehrman Collection on deposit at the Historical Society—and other extraordinary original resources of both Gilder Lehrman and Historical Society collections, Lansing’s Constitutional Convention Notebooks establish our institution as a principal site for understanding that the Constitution was a product of compromise, negotiation and brilliant thinking, an accomplishment nearly without parallel in modern history.”

“If you love American history, ask yourself how often (if ever) you get the chance to see a first-hand account of one of the most important events in that history,” Roger Hertog stated. “John Lansing’s notebooks from the Constitutional Convention are a rare such account: an eye-witness report of what went into the creation of the U.S. Constitution.”

John Lansing, Jr. (1754-1829) was born in Albany, took up the legal profession and served as a New York delegate to the Constitutional Convention. His detailed notes of the Convention join those of Rufus King, which are already in the Historical Society's collection, and enrich our knowledge of the debates and compromises that helped forge the foundational document of the United States. Lansing was also a major figure in the New York State ratification convention in 1788 in Poughkeepsie, where his insistence that the new Constitution be enlarged by a Bill of Rights helped to secure the protections that citizens enjoy today.

The delegates’ vow of secrecy, which banned the taking of notes for publication, limited the amount of material created documenting the Convention proceedings. Although notes by a number of other delegates, including James Madison, survive, Lansing’s are among the purest and most detailed, providing a unique and unedited first-hand account of the period of Lansing’s attendance at the Convention.

“Reading through the Lansing notebooks is a thrilling experience,” said Jean Ashton, Executive Vice President of the New-York Historical Society and Director of the Library Division. “Lansing recorded speeches and discussions, assigning names and identifying positions, as the delegates participated in the give-and-take of debate. Lansing became distressed that the meeting was seeking to establish an entirely new government rather than simply amending the Articles of Confederation, as charged. Lansing and his fellow New Yorker Richard Yates left the Convention early, but not before he had participated actively and created this illuminating and highly significant record.”

"The acquisition of John Lansing, Jr.'s Constitutional Convention notebooks by the New- York Historical Society is a significant event both for the Historical Society and for those interested in the history of the making of the Constitution," noted Richard Beeman, University of Pennsylvania historian and author of Plai, Honest Men: The Making of the American Constitution. "Lansing was one of the ‘nay-sayers’ in the Constitutional Convention, and his notes on the debates in the Convention provide us with an important perspective from one of the few delegates in Philadelphia that summer who was critical of the proceedings."

Stated Pauline Maier, scholar of the American Revolution at the Massachusetts Institute of Technology: "This is a spectacular acquisition for the New-York Historical Society, which is precisely where the John Lansing, Jr., notebooks ought to be. It will add substantially to the Society's already rich collections on New York and American constitutional history. That the Historical Society plans to digitize the notebooks for the use of scholars everywhere only adds to the good news.".


Francis Hopkinson and the Constitution

September 17 marked the 225th anniversary of the signing of the Constitution of the United States of America at Independence Hall in Philadelphia. Francis Hopkinson, a native of Philadelphia, had previously signed the Declaration of Independence and was very active in the debates at the Constitutional Convention in 1787.

Hopkinson was a man of remarkable talents and achievements especially within the political, artistic, and literary arena. He is often given credit for designing the American flag, the official state seal of New Jersey, as well as seals for both the American Philosophical Society and the University of Pennsylvania. Like a number of the other signers, Hopkinson was also a slaveholder.

In Bordentown, New Jersey, Francis Hopkinson married Ann Borden (granddaughter of the town’s founder) in 1768. He almost immediately became involved in legal and community affairs, and by the time of the Revolutionary War was writing such ballads as the “Battle of the Kegs” (1778) to commemorate the use of mines in warfare and to rally Americans to the cause of freedom. One author compared him to the famous Thomas Paine “in prose and verse.”

An accomplished painter, poet, and influential judge, Hopkinson was a staunch advocate of the Revolution and American independence. He was instrumental in the ratification of the American Constitution as well. One of his most famous writings in support of its ratification is a poem and an allegorical essay titled The New Roof, which was published in the Pennsylvania Packet on December 29, 1787.

In The New Roof, Hopkinson describes a group of “skillful architects” who had discovered the weakness of “a certain mansion house,” which was composed of 13 rafters (representing the colonies under the Articles of Confederation.) The rafters were in such a sorry condition that they needed to be repaired. He ends his essay with a descriptive analysis underscoring the need to ratify the Constitution. He writes: “Figure to yourselves, my good fellows, a man with a cow and a horse—oh the battlements, the battlements, they will fall upon his cow, they will fall upon his horse, and wound them, and bruise them and kill them, and the poor man will perish with hunger.” The architects of the new structure (Constitution) would save both the building and the man’s possessions.

Regrettably, this enthusiastic American patriot was struck, or “seized with an apoplectic fit” as Dr. Benjamin Rush termed it, on the morning of May 9, 1791, and died shortly thereafter. He was buried at Christ Episcopal Church in Philadelphia, leaving his widowed wife and posterity along with the public and his fellow statesmen. Hopkinson left a great legacy both to them and the nation with his unselfish efforts toward establishing American independence and creating a working government still viable in today’s world.

Among the many treasures of the Historical Society of Pennsylvania are two handwritten drafts and four printed documents that trace the genesis of the new form of government proposed by the Constitutional Convention. You can view these documents online.


A history of the South African Constitution 1910-1996

The New Constitution was negotiated between May 1994 and October 1996 in the country's first democratically elected convention, the Constitutional Assembly. However, the demand for a democratic constitutional dispensation was not new, and was in fact as old as South Africa itself. The Constitution was not a product solely of negotiation in the Constitutional Assembly. Experiences in other parts of the world played a role in its development, and many of its provisions are the realisation of years of struggle and are imbued with historical significance.

The history of this constitutional development spans nine decades between two major milestones, both peace treaties that ended conflict and gave birth to new constitutional orders. The first was the Treaty of Vereeniging of 31 May 1902, which ended the Anglo-Boer War and laid the basis for the adoption of South Africa's first constitution. This constitution was drafted in an unrepresentative convention. The second was the 1993 interim constitution, which has also been described as a peace treaty that ended conflict. Like the previous peace treaty, it laid the basis for a new constitution, only this time it was to be drafted in a democratically elected convention, the Constitutional Assembly.

There have been four Constitutions in South Africa

In 1910 Britain decided to withdraw from the government of South Africa and handed the country over to the white residents of South Africa. These people were the British settlers and the Boers. The first Constitution for the Union of South Africa was adopted in 1910. This gave rights to the white minority but took away the right to vote of the majority of South Africans.

In 1960 the white government held a referendum to decide whether South Africa would become a Republic. On 31 May 1961 South Africa was declared a Republic and the government adopted the second Constitution. This also took away the rights of black people.

In 1983 the government passed the third Constitution. This Constitution created the tricameral parliament, which meant there was a separate parliament for the White, Coloured and Indian groups. This Constitution excluded black people and automatically made them citizens of the homeland where they were born. They had no rights outside these homelands.

In 1994, twenty-six parties negotiated and adopted an interim Constitution that gave the vote to everyone. This Constitution lasted for two years. During that time the elected government worked as the Constitutional Assembly and had to draw up a final Constitution.

The birth of South Africa

The Anglo-Boer War, which began in 1899, resulted in the unification of four independent territories into the Union of South Africa. During this war, many African people associated themselves with the British in the hope of improving their lot.

According to Andre Odendaal, a prominent historian at the University of the Western Cape, 'in stating the reasons for their surrender in the discussions that preceded the Treaty of Vereeniging in May 1902, the Afrikaner leaders gave as a third reason the fact that "the Kaffir Tribes" inside and outside the Republics had almost all been armed and were fighting against them. . A fortnight before the Republican surrender, General Botha had declared, "The Kaffir question is becoming daily more serious"' (Odendaal, 1984:36).

The Afrikaners were mistaken, however, for at least 37 472 African people were incarcerated alongside Afrikaners in British concentration camps. The British seemed to have much in common with the Afrikaners: in the Treaty of Vereeniging, clause 8 simply stated, 'The question of granting the Franchise to natives will not be decided until after the introduction of [Afrikaner] self-government'. The repeated pleas by African leaders to the British not to compromise the few pitiful rights they had in the Cape were ignored.

On 12 October 1908, exactly nine years after the outbreak of the Anglo-Boer War in 1899, a National Convention of white representatives from the four colonies assembled in Durban. Whites, who were until then at war with each other, united to form a government that excluded the African majority. Two major debates were to dominate the deliberations of these constitution makers: the 'Native question', and the choice between a federal and a unitary dispensation.

The latter debate cut across the racial divide. For the Afrikaner-ruled republics, a federation would mean that they could maintain their independence, and would not have to succumb to the liberalism of the Cape. The question was also vociferously debated in African newspapers (Izwi labantu, 1907 & Odendaal, 1984:95) and within African organizations. At the first meeting of the South African Native Congress held in August 1907, the members resolved:

That this Conference of the coloured people and natives of the Cape Colony assembly at Queenstown is of the opinion that in the event of the adoption of any form of closer union of the South African colonies:

(a) Federation is preferable to unification.
(b) That form of federation should be adopted in which the Federal Parliament exercises such powers only as are specifically given to it in the federal constitution.
(c) The Cape Franchise should be the basis of federal franchise.
(d) The basis of representation of the Federal Parliament should be the voters' list.
(e) The present so-called native territories (Swaziland, Basutoland and British Bechuanaland) should be regarded as outside Federal territory and under the protection of the Imperial government represented by the High Commissioner for such native territories, unless or until provision shall be made for the representation of such territories in the Federal Parliament by members elected on the same basis as in colonies forming the federation. (Odendaal, 1984:100)

While African people were not represented in the negotiation of the constitution, they were not prevented from petitioning the convention drafting it. The fear of losing what rights they did hold agitated many African people and boosted support for the few organizations that represented their interests. Upon the convergence of such interests, African organizations consulted with each other to find ways of influencing the convention. This, in part, laid the basis for a single national organization. In its submission to the convention, the Natal Native Congress declared:

We Natives of Natal, though loyal subjects of the Crown and sharing the burden of taxation, are labouring under serious disabilities by being excluded from free access to the Franchise, and having no efficient means of making our wants known to Parliament and no sav in matters regarding our most vital interests such as taxation and other things. We humbly beg, with regard to our future government, for some degree of representation in the Legislature. This would go far to remove all causes of complaint and make the Natives a more contented and devoted people under His Majesty's gracious rule. . . . Any scheme for the Closer Union of the Colonies under the British Crown should include a provision that representation should be accorded fairly to all sections of the community without distinction of colour, and that in Natal, as a precedent to any union with the other Colonies of South Africa, the native population should first be placed in the fair position Natives hold in the Cape Colony. (Odendaal, 1984:142)

The report of the National Convention, the draft South Africa Act, was released on 9 February 1909. Anticipating the negative approach of the constitution makers, the Orange River Colony Native Congress prepared for the first joint convention of Africans from the whole of South Africa, with the aim of formulating and publicizing its views on the union.

The draft South Africa Act was endorsed by the four colonial Parliaments and referred back to the National Convention at the beginning of May that year. However, not all parliamentarians supported it. In a debate in the Cape Parliament, W. P. Schreiner, who was also a supporter of equal rights, made an impassioned plea for non-racialism under the slogan, 'Union with honour':

The rights of the coloured people should not be bartered away from any benefit which the Europeans should get. 'Union with honour before all things. There was something pathetic in it that they should take the rights of others away, and make them a matter of bargaining, and say, 'If you do not give them up there will be no Union. ' He would stand out of Union rather than give up his trust in the matter. Federation, Unification etc. were questions of detail but the question stood out as an absolutely essential one. . Union without honour . was the greatest danger any nation could incur. (quoted in Odendaal,1984:191-192)

After approval the draft constitution was submitted to Britain for assent by the Imperial Parliament, and African people saw this as a further opportunity to ensure that their interests were consulted. A delegation of leaders, including Schreiner, went to London and presented a petition to the House of Commons:

The Bill now before the Parliament of Great Britain and Ireland for the purpose of enacting a Constitution to unite the self-governing British Colonies of South Africa into a legislative union under the Crown would for the first time in the history of the legislation of that Parliament by virtue of the phrase 'of European descent' . create a political discrimination against non-European subjects of His Majesty, and thus introduce for the first time since the establishment of representative institutions in the year 1852 into the Colony of the Cape of Good Hope a colour line in respect of political rights and privileges.

Your Petitioners are deeply disappointed at the extension of political and civil rights and privileges to the coloured people and the natives in the Transvaal and the Orange River Colony.

Your Petitioners feel aggrieved that solely on account of differences in race or colour it is contemplated by the proposed Constitution to deprive the coloured and native inhabitants of the colony of the Cape of Good Hope of their existing political rights and privileges. Your Petitioners fear that the franchise rights of the coloured people and the natives of the Cape Colony are adequately protected under the provisions of the proposed Constitution, but are indeed threatened by the provisions Clause 35.

Your Petitioners apprehend that by the racial discrimination proposed in the aforesaid Bill as regards the qualification members of the Union Parliament, the prejudice already existing in the Transvaal, the Orange River Colony and Natal, will accentuated and increased that the status of the coloured people and natives will be lower, and that an injustice will be done to those who are the majority of the people in British South Africa, who have in the past shown their unswerving loyalty to Crown, their attachment to British institutions, their submission to the laws of the land, and their capacity for exercising full and political rights. (Schreiner papers: Appendix, & Odendaal,1984:224)

While the principle of the union was supported, the petitioners argued that 'the only practical and efficient means whereby fair an administration and legislation can be attained, peace, harmony and contentment secured, is by granting equal political rights to qualified men irrespective of race, colour, or creed'. Despite these protestations and petitions, the bill in the British House of Commons was passed on 19 August 1909.

It was however only on 31 May 1910, eight years after the Treaty ofVereeniging, that the Union of South Africa was inaugurated The constitution provided for an all-powerful government consisting only of white men, even removing the minimal voting rights which black people had previously held.

The new dispensation was seminal in the development of South Africa's constitutional history. Quite aside from being the first constitution, it gave rise to two parallel streams of constitutional thought would dominate the country's political and social history. One stream of thought developed within the framework of the established status quo, while the other was shaped by the struggle of the majority for a system free of discrimination.

This constitution allowed the government to quickly introduce a series of legislative measures, including the infamous 1913 Land Act, effectively to dispossess and disenfranchise African people. The response of the African people was to unite under a single body that would pursue their interests. One of the pioneers in this regard was Pixley Ka Isaka Seme, a lawyer trained in Britain, who immediately set about the establishment of a 'Native Union'. He called for a congress that would get 'all the dark races of this subcontinent to come together, once or twice a year, in order to review the past and reject therein all those things which have retarded our progress'. He made a significant appeal for the unity of the African people: 'The demon of racialism, the aberrations of the Xhosa-Fingo feud, the animosity that exists between the Zulus and the T[s]ongas, between Basothos and every native, must be buried up and forgotten it has shed among us sufficient blood. We are one people. These divisions, these jealousies are the cause of all our woes and all our backwardness and ignorance today'. (Rive & Couzens,1991:9-10 & Walshe,1971:33)

The call made by Seme was answered with the formation of the African National Congress (ANC) on 8 January 1912. The birth of the ANC provided the African majority with a united leadership that articulated their plight and led their resistance, but more importantly, it provided African people with a vision of a better life. Almost invariably the struggles they fought were against a constitutional dispensation that provided the legal basis for their oppression. Accordingly, their vision also included a just and democratic constitutional dispensation.

The rise of nationalism

The Union of South Africa also meant economic cohesion between previously separate and competing economies, affording the British-owned mines greater access to cheaper labour and the ability to transport their goods to harbours for international export. As a result, constitutional and legislative development focused on the restriction of social interaction, and limited the access of African people to skills and the market to such an extent that they became no more than cheap labour. Along with industrialization and the development of the economy came urbanization, greater segregationist laws, and a growing militancy among workers.

This economic boom was soon threatened by a post-war economic crisis, which resulted in great social upheaval. An example of this crisis was the drop in the price of gold from 130 shillings an ounce in 1919 to 95 shillings in 1921. To maintain profitability, the Chamber of Mines decided to reduce its white work force by employing semi-skilled black workers at lower rates of pay, inadvertently fostering conflict between black and white workers.

Politically, the formation of the Union of South Africa made possible the development of nationalism among white and black people alike. The previously separate African tribes were presented with a common authority that sought to disenfranchise them in other words, they now had one enemy. The Union's new dispensation also paved the way for an economy that was increasingly dependent on a common working class. As a result, this period also saw the rise of the South African Communist Party (SACP), which already had a growing base amongst the white working class. In December 1928 the SACP formulated a new rallying call: A South African Native Republic as a stage towards a workers' and peasants' government with full protection and equal rights for all national minorities'.

The 'Native Republic' thesis was developed after the Communist International discussed the situation in South Africa at its sixth congress. The concept was developed further by the South African Communist Party. The annual report of the party dated 31 January 1929 dealt with the 'Native Republic' thesis. Its programme issued on 1 January 1929 clearly reflects how the adoption of this thesis translated into actual demands.

This was the seed for the concept of majority rule in South Africa, and it provided a basis for the theoretical development of the African nationalism that would develop in the following years. It was based on the following argument:

The overwhelming majority of the population is made up of Negroes and coloured people (about 5 500 000 Negroes and coloured people and about 1 500 000 white people according to the 1921 census). A characteristic feature of the colonial type of the country is the almost complete landlessness of the Negro population: the Negroes hold only one-eighth of the land whilst seven-eighths have been expropriated by the white population. There is no Negro bourgeoisie as a class, apart from individual Negroes engaged in trading and a thin strata of Negro intellectuals who do not play any essential role in the economic and political life of the country The Negroes constitute also the majority of the working class: among the workers employed in industry and transport, 420 000 are black and coloured people and 145 000 white among agricultural labourers 435 000 are black and 50 000 are white. (Extract from a resolution on 'The South Africa Question' adopted by the executive committee of the Communist International following the Sixth Comintern Congress)

The social transformation brought about by the replacement of expensive white, particularly Afrikaner labour with cheaper black labour saw the development of a growing number of poor whites. White people demanded further segregation and job reservation laws, and these demands in turn encouraged the development of Afrikaner nationalism. At the same time, the development of an urban African working class allowed for greater unity.

The development of a vision

In August 1941 Franklin D. Roosevelt and Winston Churchill signed the Atlantic Charter. This agreement contained eight principles: renunciation of territorial aggression no territorial changes without consent of the peoples concerned restoration of sovereign rights and self-government access to raw materials for all nations world economic co-operation freedom from fear and want freedom of the seas and the disarmament of aggressors. These principles inspired the emerging African nationalists of South Africa, for it raised the general issue of basic rights and, more particularly, the question of self-determination. Drawing from the Atlantic Charter, the ANC drafted its own 'African Claims', which demanded full citizenship, the right to land, and an end to all discriminatory legislation. This was the first time that the concepts of fundamental rights or self-determination were considered demands.

The Atlantic Charter was an Anglo-American statement of common principles issued on 14 August 1941 by United States President, Franklin D. Roosevelt, and British Prime Minister, Winston Churchill. They had conferred for four days (9-12 August) abord the U.S.S. Augusta off Newfoundland. Although the United States had not yet entered World War II, the statement became an unofficial manifesto of American and British aims in war and peace. The charter's principles were endorsed by 26 allies in the United Nations Declaration signed in Washington D.C. on 1 January 1942.

In 1948 the National Party (NP) came to power, introduced the policy of apartheid, and enacted such notorious laws as the Suppression of Communism Act, the Group Areas Act, the Separate Registration of Voters Act, the Bantu Authorities Act, the pass laws, and the stock limitation laws. Apartheid provoked resistance. In response to these laws, the African, coloured, and Indian people found cause to unite in action, and launched a defiance campaign in 1952. The campaign commenced on 6 April 1952, the 300th anniversary of the arrival of van Riebeeck, a leader of the first Dutch settlers in South Africa.

On 26 June 1955 the Congress of the People took place, a meeting to which all political parties were invited. After nation-wide consultation, several thousand delegates met in Johannesburg to draft the Freedom Charter, which was in effect the first draft of a new constitution for South Africa. The political movement of the oppressed majority had finally matured, graduating from a simple opposition to a movement with leadership and solutions. This charter, particularly its opening paragraph, sketched a vision of what the country's political landscape ought to be, a vision that was to become deeply etched in the thinking of several generations of political leaders. The inspiration provided by the Charter can be seen clearly in the drafting of the final Constitution. Its opening paragraph states:

We, the People of South Africa, declare for all our country and the world to know: that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people that our people have been robbed of their birthright to land, liberty and peace by a form of government founded on injustice and inequality that our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities that only a democratic state, based on the will of all the people, can secure to all their birthright without distinction of colour, race, sex or belief.

The demand for a national convention

In May 1957 the ANC President-General, Albert Luthuli, made an impassioned appeal for a national convention that would allow representatives from all sections of the population to meet to discuss the conflict and look at solutions. His appeal was ignored.

On 16 December 1960 a Consultative Conference of African Leaders was held in Orlando, Soweto, when forty African leaders met with liberal and progressive whites. This conference rejected the establishment of a republic and made a call to the African leadership to attend an 'all-in conference', with the purpose of demanding a call for a nation convention. This convention had to be representative of the people South Africa, and it had to consider a new political dispensation and individual fundamental rights.

On 25 March 1961 the All-in Conference met and called for the negotiation of a democratic dispensation. Fourteen hundred delegates from all over the country representing 150 different religious, social, cultural, and political bodies gathered. At this conference, Nelson Mandela's call for a national convention of elected representatives to determine a new non-racial democratic constitution for South Africa was adopted. The conference resolved that:

1. WE DECLARE that no constitution or form of government decided without the participation of the African people who form an absolute majority of the population can enjoy moral validity or merit support either within South Africa or beyond its borders.

2. WE DEMAND that a National Convention of elected representatives of all adult men and women on an equal basis irrespective of race, colour, creed or other limitation, be called by the Union government not later than 31 May 1961 that the convention shall have sovereign powers to determine, in any way the majority of the representatives decide, a new non-racial democratic constitution for South Africa. (Karis & Carter, 1977)

The conference also directed Mandela to draw Prime Hendrik Verwoerd's attention to the resolution. In a letter to the Prime Minister, Mandela referred to the rising tide of unrest in many parts of the country, and stated that 'It was the earnest opinion of the Conference that this dangerous situation could be averted only by calling of a sovereign national convention representative of Africans, to draw up a new non-racial and democratic Constitution. Such a convention would discuss our national problems in a sober manner, and would work out solutions which sought to preserve and safeguard the interests of all sections of the population'.

Unfortunately, this call, like Luthuli's, went unheeded. In an attempt to gain further support for the idea, Mandela addressed a further letter to the leader of the parliamentary opposition, Sir de Villiers Graaf:

We can see no workable alternative to this proposal, except that the Nationalist Government proceeds to enforce a minority decision on all of us, with the certain consequence of still deeper crisis, and a continuing period of strife and disaster ahead. Stated bluntly, the alternatives appear to be these: talk it out, or shoot it out. Outside of the Nationalist Party, most of the important influential bodies of public opinion have clearly decided to talk it out. The South African Indian Congress, the only substantial Indian community organisation, has welcomed and endorsed the call for a National Convention. So, too have the Coloured people through the Coloured Convention movement which has backing of the main bodies of Coloured opinion. A substantial European body of opinion, represented by both the Progressive and the Liberal Parties, has endorsed our call. Support for a National Convention has come also from the bulk of the English language press, from several national church organisations, and from many others.

But where, Sir, does the United Party stand? We have yet to hear from this most important organisation - the main organisation in fact of anti-Nationalist opinion amongst the European community. Or from you, its leader. If the country's leading statesmen fail to lead at this moment, then the worst is inevitable. It is time for you, Sir, and your Party, to speak out. Are you for a democratic and peaceable solution to our problems? Are you, therefore, for a National Convention? We in South Africa, and the world outside expect an answer. Silence at this time enables Dr. Verwoerd to lead us onwards towards the brink of disaster.

further letter to the leader of the parliamentary opposition, Sir de Villiers Graaf link to Document 10

This appeal also came to nought, and the tension in the country had reached breaking point. A successful national general strike was called with the start of a massive defiance campaign, during which more than 10 000 people were arrested. There were clear signs of frustration on the part of the African nationalists. The change of tone between the letters by Luthuli in 1957 and those of Mandela in 1961 clearly reflect a growing militancy in ANC thinking. On 31 May 1961 the government, after holding a whites-only referendum, declared South Africa a republic.

This marked a decisive break in South Africa's history, for the country was to slide into an armed conflict lasting 30 years. Instead of heeding the advice of the All-in Conference, the government banned the ANC and other organizations, and left them with no legal avenue to pursue their interests. They found they had no option but to resort to armed struggle. The ANC had been transformed from a non-violent African nationalist organization into a revolutionary liberation movement. By 1964, most of the ANC's leaders were jailed and the resistance seemed effectively silenced. However, this silence did not last.

The ANC's 'Guidelines on Strategy and Tactics', which was produced at the organization's National Conference in Morogoro, Tanzania, in 1969 provides a clear explanation of the revolutionary armed strategy the ANC was to pursue.

The politics of reform and repression

In June 1976 the government met its fiercest resistance yet from students protesting against the imposition of Afrikaans as a medium of education. Several hundred students were killed in the uprisings that ensued and South Africa became a focus of attention throughout the world as apartheid was condemned internationally. Thousands left the country to join the liberation movements, and the armed struggle gained momentum. The government was obliged to prove willingness to reform.

Upon coming to power in 1978, Prime Minister (and later President) P. W. Botha began reorganizing the state. One of the significant developments was the creation of a new government department, Department of Constitutional Development and Planning. This department was mandated to introduce 'reforms' while the security establishment took over the major strategic decision-making responsibilities of the state (Swilling & Phillips,1989:114). This unusual delegation of tasks was given effect through the creation of a multi-tiered, interdepartmental structure dominated by the military but staffed by civilians, called the National Security Management System (NSMS). The role of the NSMS was to address economic and social problems in local 'hotspots', in a designed to win the support of the populace in a given area. The idea was that this would isolate those responsible for 'political unrest' and leave them to the mercy of the state's repressive might.

As part of Botha's reform strategy, the next major constitutional development took place in 1983, in the form of a new Tricameral Parliament and a President's Council. Parliament was made up of three houses: the white House of Assembly, the coloured House of Representatives, and the Indian House of Delegates. Africans were excluded from this dispensation. Differences between the three houses were referred to the President's Council.

Botha's regime was characterized by a dual approach to the growing militancy of the anti-apartheid forces - reform and repression. It was a method informed by Botha's militarized style of government, learnt while in office as Minister of Defence, and drawing on the strategies of the military dictatorships of Latin America.

The NSMS, which was initiated in 1979, and the 1983 constitution reforms initiated by Chris Heunis, Minister of Constitutional Affairs and Planning, were manifestations of a shift in National Party (NP) thinking and strategy. While maintaining the apartheid project, the NP had begun to focus more closely on other cleavages that could be exploited within the black community. The reform packages that characterized the 1980s were aimed at creating a group of 'urban insiders', which were a small, privileged African elite who could act as a buffer against the majority of black South Africans (Cock & Nathan, 1989:139). This was the aim that informed both the Riekert and Wiehahn Commissions and the 1983 constitution.

The reform and repression approach employed by the NP, at its most sophisticated in the form of the NSMS, created a brief respite for the Botha regime, for it was able to quell some of the political turmoil of the mid-eighties, and to illustrate the sophisticated might of the apartheid state. In retrospect, it appears that at this point in South Africa's history an impasse had been reached. The NSMS clearly showed the military might of the South African regime, ruling out the possibility of any successful military victory by the anti-apartheid forces. On the other hand, real tensions were developing within the state itself as securocrats and political reformers began plotting different trajectories for South Africa's future.

The strategy of reform and repression had only limited success. Armed resistance intensified, and by 1984 armed actions had risen to an average of fifty operations per year. In 1985 the ANC first deployed landmines and began to develop a presence in rural areas. The organization declared 1986 the year of the people's army, Umkhonto we Sizwe (MK). As alternative township structures, street committees, and people's courts began functioning in many areas, the state, whose agenda was dominated by insurrectionary politics, was struggling to govern much of the country. The next step for the resistance was 'the transformation of armed propaganda into a people's war'. The Bethal trial of ANC underground activists exposed the elaborate plans the ANC had developed for its revolutionary warfare (Moss,1988:3). From 1986 onwards the number of attacks rose to between 250 and 300 per year. It was also during this period that a vigorous debate arose within the liberation movement between those who argued for an 'insurrectionary people's war' and those who wanted a war to force the regime to the negotiating table (Lodge,1989:42).

The search for constitutional solutions

It was in this context that the first exploratory discussions began in 1985 between Nelson Mandela and representatives of P. W. Botha's government. It had become apparent to Botha that the crisis in South Africa was reaching unmanageable proportions, and that drastic political changes had to take place. He also realized that constitutional changes would have to include representatives of the black majority. In August 1985 he was confronted with a choice between two broad approaches: he could release political leaders and start a process of genuine negotiation, or he could consult with representatives hand-picked by himself in a process that he could manage, and be reasonably certain of a satisfactory outcome. Botha was not bold enough for negotiation, and chose the latter he was not yet prepared to cross the Rubicon. However, this arrogance did not last much longer.

The period saw a similar attitude in South Africa's relationship with its neighbours. Until the first quarter of 1988 South Africa carried out a brutal campaign of aggression and destabilization against its southern African counterparts. However, the balance of forces in the region was to be altered by a historic military defeat suffered by the South African Defence Force (SADF) that year at Cuito Caunavale in Angola. The defeat proved that South Africa's military might was not invincible after all. The effect was immediate: 'In the first week of May, South African negotiators travelled to London for the first of several rounds of talks on Angola and Namibia with officials from Angola, Cuba and United States. These resulted in an agreement over the withdrawal of SADF troops from Angola (completed on 30 August 1988), followed by accords signed in Brazzaville and New York (on 13 and 22 December respectively) providing for Namibia to begin its transition to independence in accordance with United Nations Security Council Resolution 435 of 1978 on 1 April 1989' (Davies,1989:155).

Botha now had further incentives to seek solutions to the crisis. On 21 April 1988 he outlined a new constitutional framework for the country based on a federal or confederal structure that would enable black people to be co-opted into the political process as far as the cabinet. The proposal included: the creation of black regional bodies representing black people outside the homelands the appointment of a prime minister that 'recognizable' black leaders be co-opted as cabinet members the establishment of a national council referred to as the 'Great Indaba' ('indaba' is Zulu for a gathering or council) and the downgrading of the President's Council to a part-time body. Part of the responsibility of the 'Indaba' would be to negotiate a new constitution for consideration by the white Parliament.

The demand for a negotiated settlement

Two overriding principles shaped Botha's proposals: the first was the NP's determination to retain political control, and the second, to continue the separation of races. Whites would continue to control all decision-making structures, which were essentially undemocratic. The result was that the proposals were roundly condemned. Until this stage, the demands made by the anti-apartheid movement had been for the release of political prisoners, free political activity, the unbanning of political organizations, and a universal franchise. What changed was the reintroduction of a demand first made in March 1960 for the negotiation of a new constitutional dispensation with the true representatives of the people.

The government's constitutional proposals took shape during June and July 1988 when a package of several bills was introduced. Among these were the Promotion of Constitutional Development Act, the Extension of Political Participation Bill, the Group Areas Amendment Bill, the Free Settlement Areas Bill, and the Local Government Affairs in Free Settlement Areas Bill. The primary purpose of the reforms brought about by these laws was to strengthen the hand of 'moderate' black people and pave the way for their involvement in the constitution-making process. Black 'moderates' had a great deal to gain by these proposals, for it provided them with unprecedented powers over townships. The lifting of restrictions imposed by the Group Areas Act would appease a significant number of moderate coloured and Indian people, and it was hoped that the changes brought about by these reforms would also make it possible for moderate black leaders to participate in the proposed national council. The objective of this council would be to produce a constitution that would win the hearts and minds of the majority.

But this was not to be, for a constitutional crisis developed when the Houses of Representatives and Delegates, in a move that amounted to filibustering, refused to allow debate on the Group Areas Act. The government's response was to change the rules of Parliament and force the legislation through, raising a storm of protest. Botha failed to obtain the support of even moderate black leaders.

At the same time, political parties both inside and outside the country were revising their views on a constitution for the country After two years work, the ANC published the main provisions of constitutional vision, which included the establishment of a democratic state that guaranteed rights and freedoms on the one hand, and promoted affirmative action on the other.

The constitutional vision of the Progressive Federal Party (PFP) was also being reviewed. Its policy proposed a government based on geographic federation with universal franchise, but with various checks and balances to prevent majority rule, including a bill of rights and a minority veto over cabinet decisions. The PFP also saw the constitutional dispensation negotiated at a national convention.

In August 1988 the spotlight fell on Mandela when he was hospitalized with tuberculosis at Tygerberg Hospital, and speculation about the release of political prisoners and the unbanning of the ANC intensified. In the meantime, a power struggle was taking place with the NP: Botha's ill health provided an opportunity for the party to look to new leadership in the figure of F.W. de Klerk. Soon after taking over, De Klerk committed himself to seeking a new constitution that would offer 'full participation' to all South Africans in a new federal constitutional dispensation. Its goals would be to eliminate the domination of any one group by another the maintenance of community life in a non-discriminatory manner a strong economy based on free enterprise and competition social and economic upliftment for the communities suffering backlogs and the firm maintenance of law and order. In this regard, he recognized the need for inclusive negotiation among the leaders of the different parties. However, De Klerk remained implacably opposed to a one-person-one-vote system, which he argued would lead to domination by the majority.

The Minister of Constitutional Development and Planning, Chris Heunis, voiced similar sentiments as the white electorate prepared go to the polls on 6 September of that year. This election provided De Klerk's government with a mandate to proceed with the new constitutional proposals it was also to be the last whites-only general election. The demand for constitutional negotiation was developing a momentum of its own. Contemporary events in Eastern Europe around the 'collapse' of communism were also relevant: the world seemed to be going through a process of tremendous and far-reaching change, and South Africa was an integral part of it.

To prepare for the forthcoming elections, the NP on 29 June 1989 published its five-year plan. There was a deliberate lack of detail in its provisions. It confined itself to general statements that pointed to various reforms, such as a bill of rights which allowed for group rights the engagement of 'recognised leaders of all groups' to negotiate a new dispensation a review of the functions and powers of the head of state the promotion of 'self determination regarding own affairs', along with joint decision-making on 'general affairs', by means of the division and devolution of power in a non-discriminatory manner and a vote for black people within five years. Despite the lack of detail, the policies of the NP were beginning to look more like those of the Democratic Party (DP), the recently remade and renamed PFP. Most importantly, the NP had started to question many of its own earlier beliefs.

Black leaders rejected the plan, insisting that apartheid be scrapped altogether to create a climate conducive to negotiation. The plan also received attention in the British media, and they too were disappointed. According to an editorial in the Star, 'The Nationalist government is chasing a train that has already left the station. Where it intends to be five years from now is where it should have been a decade ago'. However, the positive aspect was that 'The plan envisages negotiation with black South Africans and it offers black people a vote at national level within five years. This is an encouraging shift, especially following years of oppressive apartheid and erosion of the rule of law'.

By this time, influential sectors in society, including business, religious bodies, youth organizations, and academics were holding consultations with the ANC in various African countries in defiance of South African law. These meetings considered issues such as violence, sanctions, constitutional models, the economy, and the role of whites in the transformation and future of South Africa, issues that the South African public was debating and wanted leadership on. The NP lacked the boldness or confidence required to provide such leadership, and hesitated in breaking with its apartheid past and its obsession with group rights.

Nonetheless, the 1989 election was a resounding success for De Klerk, one which he interpreted as a mandate for reform. In the second week of September De Klerk felt confident enough to allow a protest march by 30 000 people on the city hall in Cape Town, led by Archbishop Desmond Tutu and Alan Boesak, a cleric and prominent leader in the United Democratic Front. This marked the relaxation of restrictions on protest action, and 'petty apartheid' legislation was no longer stringently enforced.

In another development, the Department of Constitutional Development and Planning was streamlined under the leadership of Gerrit Viljoen to deal specifically with the process of negotiation. He was the leader of the Broederbond and the government's chief ideologue, negotiator, and spokesperson on constitutional matters. He was one of the most influential people in the shaping of the development of government and National Party strategy. The department began looking at various constitutional models, and all major government speeches now spoke of a 'new South Africa'. The continued state of emergency, incarceration of political prisoners, and ban on a number of political parties, however, remained obstacles in the way of negotiation. There was a determination to effect certain changes, and for these De Klerk had the public support of Dr Zach de Beer, the leader of the Democratic Party.

The beginning of October 1989 saw the government's international allies intensify the pressure for change. British Prime Minister Margaret Thatcher looked to the South African government to provide her with sufficient grounds to stave off demands made by Commonwealth leaders for tougher sanctions. In the United States, the Assistant Secretary of State, Herman Cohen, set out state policy options on South Africa, which included demands that the South African government unban political parties, lift the state of emergency, allow for the return of exiles, remove all discriminatory legislation, and begin negotiating with credible black leaders on a new constitutional order by June 1990. Internally, even the Inkatha Freedom Party (IFP) refused to negotiate until these obstacles were removed. Weeks later, the government unconditionally released several senior political prisoners.

One of the difficulties the government faced was recognizing the ANC as a major negotiating partner. Hence, the government's chief negotiator, Gerrit Viljoen, mooted the idea of an election among black people outside the homelands to choose their negotiating leaders, a proposal which the Mass Democratic Movement (MDM) and other major organizations immediately rejected. Walter Sisulu, one of the ANC leaders released in October 1989, denounced the government's plan to lift the state of emergency and to repeal the Separate Amenities Act as not enough to start a process of genuine negotiation. According to him, in order to create a basis for discussions the government had to release political prisoners, unban organizations like the ANC, withdraw troops from the townships, and scrap all undemocratic laws. He described Gerrit Viljoen's plans to hold elections to identify black leaders as ridiculous, and even the homeland leaders were opposed to this idea.

On 10 November 1989 a high-powered delegation of business leaders from the Associated Chambers of Commerce and Industry (ASSOCOM) met with De Klerk to urge him to speed up the process of constitutional reform. The accumulated pressure of South Africa's political crisis, right-wing resistance, economic concerns, the changing political situation in Eastern Europe, and the international community led De Klerk to the inescapable conclusion that clinging to power would only lead to a bloody conflict. Thus, in November 1989, he called for an accord among all peoples of the country that would offer full political rights to everyone. He argued that nowhere in the world had a minority been able to cling to power without facing a revolution. The demand for the creation of a climate conducive to negotiation could not be refused: there was simply no other option open to the government.

The pressure on De Klerk did not let up. By early December critics in the United States were still not convinced that the changes were sufficient, and regarded them as merely cosmetic. De Klerk sought to lower the expectations made of his government and asked for greater latitude, arguing that his government was different from that of his predecessor, and that, only a few months in power, he needed time to effect change.

To add to the woes of the South African government, the United Nations (UN) General Assembly was to hold a special session from 12 to 14 December 1989 to consider a declaration on apartheid and its destructive consequences for southern Africa. The twelve leaders the European Community (EC) also met in Strasbourg, and after a two-day summit issued a declaration adopting economic measures to ban the promotion of tourism to South Africa and the import of certain South African goods. While De Klerk's commitment to reform was recognized, it was stated that 'these measures, however, are insufficient with respect to the immense task posed by the dismantling of apartheid'.

In response to the mounting pressure, De Klerk and his cabinet held a special work session on 4 and 5 December 1989. Some of the matters considered included the release of Mandela and other prisoners, unbanning of political organizations, constitutional proposals, and the announcement De Klerk was to make at the opening of the new parliamentary session on 2 February 1990. After this meeting Minister of Constitutional Development and Planning, Gerrit Viljoen declared that group rights were no longer a non-negotiable demand the government in constitutional negotiation. This was one of the most significant policy shifts in NP thinking.

The momentum generated by the demand for constitutional negotiation was further intensified by the Conference for a Democratic Future that started its work on 8 December 1989. The conference, organized by the Mass Democratic Movement (MDM), was attended by more than 6 000 delegates from throughout the country representing 2 000 organizations. Even eleven affiliates of the National Congress of Trade Unions (NACTU), an Africanist union federation, defied its central committee and attended the conference. Parties and leaders from various homelands were also present.

Speaking at the conference's opening session, Walter Sisulu invited De Klerk to attend its deliberations and urged the government to abandon the ideas of a 'Great Indaba' and a 'black election'. He confirmed the commitment of the United Democratic Front (UDF), MDM, and civil society to the demands set out in the Harare Declaration, and called on the government to create the necessary climate for negotiation to take place. The conference adopted a resolution and recommitted delegates to intensify the pressure on the government to commit itself to genuine negotiation. A call was also made to the international community to maintain the pressure already mounted on the South African government.


Arrests and Other Detentions.

That the Fourth Amend-ment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice Marshall63 and is now established law.64 At common law, warrantless arrests of persons who had committed a breach of the peace or a felony were permitted,65 and this history is reflected in the fact that the Fourth Amendment is satisfied if the arrest is made in a public place on probable cause, regardless of whether a warrant has been obtained.66 However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police officers must have a warrant.67

The Fourth Amendment applies to “seizures” and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants, or probable cause in instances in which warrants are not required.68 Some objective justification must be shown to validate all seizures of the person,69 including seizures that involve only a brief detention short of arrest, although the nature of the detention will determine whether probable cause or some reasonable and articulable suspicion is necessary.70

The Fourth Amendment does not require an officer to consider whether to issue a citation rather than arresting (and placing in custody) a person who has committed a minor offense—even a minor traffic offense. In Atwater v. City of Lago Vista,71 the Court, even while acknowledging that the case before it involved “gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment,” refused to require that “case-by-case determinations of government need” to place traffic offenders in custody be subjected to a reasonableness inquiry, “lest every discretionary judgment in the field be converted into an occasion for constitutional review.”72 Citing some state statutes that limit warrantless arrests for minor offenses, the Court contended that the matter is better left to statutory rule than to application of broad constitutional principle.73 Thus, Atwater and County of Riverside v. McLaughlin74 together mean that—as far as the Constitution is concerned—police officers have almost unbridled discretion to decide whether to issue a summons for a minor traffic offense or whether instead to place the offending motorist in jail, where she may be kept for up to 48 hours with little recourse. Even when an arrest for a minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause.75

Until relatively recently, the legality of arrests was seldom litigated in the Supreme Court because of the rule that a person detained pursuant to an arbitrary seizure—unlike evidence obtained as a result of an unlawful search—remains subject to custody and presentation to court.76 But the application of self-incrimination and other exclusionary rules to the states and the heightening of their scope in state and federal cases alike brought forth the rule that verbal evidence, confessions, and other admissions, like all derivative evidence obtained as a result of unlawful seizures, could be excluded.77 Thus, a confession made by one illegally in custody must be suppressed, unless the causal connection between the illegal arrest and the confession had become so attenuated that the latter should not be deemed “tainted” by the former.78 Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed.79


New Originalism: A Constitutional Scam

“New Originalism” has grown over the last decade, largely spurred by right-wing scholars, judges, and generous support from conservative funders. Yet its methodology is murky, its practices dubious, and its historical foundations shaky at best.

AMERICANS ARE deeply divided over how to interpret the Constitution. Originalism, the view that judges should interpret the Constitution by discovering the original intent or the original meaning of the text, has a strong hold on the public. Yet the opposing view, that judges ought to interpret the Constitution as a living document and read it in light of contemporary values or an evolving tradition, is also well entrenched in American culture. Not surprisingly, support for originalism is strongest among Tea Party activists, conservatives, and Republicans. Although the vast majority of legal academics are not originalists, the theory of originalism has never been stronger among law professors. Indeed, originalism now has adherents not only among conservative but also liberal legal scholars. There is really only one group in American society that remains largely immune to the lure of originalism: historians.

At first glance, this fact might seem strange. Historians devote their lives to understanding the past, so one would surmise that they, above all others, would be drawn to the theory of originalism. One might attribute the resolute anti-originalism of most historians to the fact that they are generally more liberal than the population at large and thus oppose originalism for political reasons. Although political orientation may account for some of this animus, their hostility to originalism has less to do with politics and more to do with questions of historical interpretation and method. When most historians look closely at originalist arguments, what they usually find is bad history shaped to fit an ideological agenda—what historians derisively call “law office history.”

ORIGINALIST CONSTITUTIONAL theory developed during the Reagan years as a critique of activist judges. Its theorists argued that a jurisprudence focused on the original intent of the Founders would serve as a means of limiting the discretion of judges. This theory proved controversial from the start and was subjected to a number of withering criticisms. One of the many problems with the theory stemmed from its shaky historical foundations. Simply put, the Founders did not speak with a single voice on most constitutional questions. Thus, traditional originalism collapsed as evidence accumulated that the Founding generation disagreed on most of the major constitutional issues they confronted. If Madison and Hamilton could not agree on how to interpret the Constitution, how could modern judges claim to have found an objective means to discern the true meaning of its text?

“New Originalism” has grown over the last decade, largely spurred by right-wing scholars, judges, and generous support from the Federalist Society, the wealthy conservative legal group that has become a farm team for conservative judges and academics. In contrast to traditional originalism, new originalism emerged at a time when the Supreme Court was dominated by a conservative majority, as it is today. The goal of new originalism is not to constrain judges, but to empower them to further the agenda of conservatives. (A few liberals have embraced a version of this theory, hoping to use it to revive and expand aspects of the Fourteenth Amendment, but this is a small minority within the originalist movement.) For right-wing scholars and judges, new originalism serves as a type of constitutional camouflage. It allows “conservatives” to create their own living constitution and advance a form of judicial activism, while claiming to be simply engaged in an act of constitutional redemption.

New originalism eschews a focus on original intent and instead concentrates on the public meaning of the Constitution. Yet, if one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.

New originalists are dismissive of history. They argue that original meaning, as they construe it, is simply different from historical meaning. If this claim were true, then historians would have no special expertise when it comes to understanding the original meaning of the Constitution. This view is utter nonsense. Different historical methods can certainly yield different answers to the question of what the Constitution meant. Social historians might give preference to what ordinary Americans thought the Constitution meant, while legal or constitutional historians might lay greater stress on the opinions of legal and judicial elites. It might well be the case that there was no consensus in the Founding era on what a specific provision of the Constitution meant. What is clearly false is the new originalist claim that original meaning is not subject to the rules of verification that apply to all historical works.

New originalists are especially fond of Justice Scalia’s majority opinion in District of Columbia v. Heller, the controversial case that stuck down Washington’s handgun ban. John McGinnis and Michael Rappaport, law professors who are proponents of new originalism, applaud Scalia for applying the Founding era’s original methods to the problem of the Second Amendment. In Heller, Scalia cast aside the preamble of the Second Amendment, which declares that the purpose of the amendment is to protect a well-regulated militia. According to Scalia, the Founders believed that preambles should only be used to clarify an ambiguity in the text. This approach was so odd that Justice Stevens’ dissent chided Scalia for interpreting the latter part of the Second Amendment first, and considering the preamble second—in essence reading the text backward. The sources Scalia cites for this bizarre approach turn out to have no connection to the Founding era at all. Scalia cited two legal treatises written in the nineteenth century and a single early-eighteenth-century English case that had come into disrepute by the time the Second Amendment was written.

The reason for Scalia’s neglect of Founding-era sources is obvious if one actually reads sources from the period, which support Stevens’, not Scalia’s, reading. Take, for example, the views of then–Chief Justice John Jay, one of the coauthors of the Federalist, who opined in a 1790s decision that “a preamble cannot annul enacting clauses but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design.” Jay’s method, the orthodox approach favored by judges and lawyers in the Founding era, flatly contradicts Scalia’s view of preambles. (It also contradicts the new originalist claims about intent.)

John Yoo, a prominent new originalist legal scholar who helped to frame the Bush administration’s novel views on torture, goes even further in circumventing historical understandings of the Constitution. (The Founders, it is worth recalling, were strong supporters of the principle of international law and took a dim view of torture.) For Yoo, the actual history of the Founding era poses few constraints on the modern lawyer or judge. Yoo accomplishes this sleight of hand by ignoring the conflicts and disagreements among the Founders. If one ignores those conflicts, one can cherry-pick evidence to construct whatever theory one likes. Most historians would point out that the Founding era was not only characterized by conflicts within the elite, such as the argument between Jefferson and Hamilton, but also an even more basic conflict between elites and ordinary Americans. Yoo and other new originalists not only ignore the tensions within the elite, they assume that common people in the Founding era lacked the knowledge necessary to understand the Constitution and played no role in the constitutional history of the period. (Yoo clearly did not bother to look at the Pennsylvania Constitution, newspapers from the period, or any text written by ordinary Americans.)

Yoo’s theory is idiotic in the eighteenth-century sense of the word: it treats ordinary Americans as if they had no public voice—in other words, as idiots. Ignoring the real voices of eighteenth-century Americans is an important part of new originalism’s methodological obfuscation. Yoo and other new originalists suggest instead that we interpret the Constitution from the point of view of an “informed, objective reader in 1787-1788.” Gary Lawson, another prominent conservative new originalist, calls this fictive reader “a fully informed reader,” while Georgetown’s Randy Barnett, one of the most vocal public intellectuals in the new originalist movement, dubs his fictive reader “a typical rational man on the street.”

Using fictive readers in place of actual historical ones effectively turns constitutional interpretation into an act of historical ventriloquism. The fictive readers imagined by new originalists somehow always seem to read the Constitution in exactly the same way that a modern right-wing law professor would read the document—a strange coincidence indeed! Even more remarkable is the claim made by some new originalists that we should not give any special weight to what people at the time actually said because, unlike new originalists, Madison, Jay, Hamilton, or any other actual person from that period would have had political motives. In their constitutional fantasy world, historical evidence cannot be used to impeach originalist claims because it would involve claims about actual practices by historical actors who were often blinded by their biases. By contrast, new originalists believe they have transcended their own political interests and created a methodology that reveals the objective meaning of the Constitution. Having cast the vast majority of Americans as idiots, and discounted the views of elites for their political biases, one might wonder what is left to the concept of original meaning. The answer is new originalist meaning ultimately has nothing to do with history: it is a modern ideology dressed up in historical clothing.
IN ORDER to determine original constitutional meaning, some new originalists have turned to philosophy. Lawrence Solum, a law professor and popular law blogger, argues that modern ordinary language philosophy provides a means of discerning the objective meaning of the Constitution’s text. Reading Solum’s originalist theory, one might be tempted to conclude that philosophers of language had reached a clear consensus on issues of meaning, but the reality is that philosophers remain deeply divided over these questions. Even if philosophical consensus existed, one would still need to develop some type of historical methodology to apply one’s philosophical theory to the past. Rather than take the time to do the history right, Solum and other new originalists prefer history-lite, endorsing a method favored by Justice Scalia, who advises that we consult old dictionaries to ascertain the original meaning of the Constitution.

One problem with this approach is that the earliest American dictionaries were written after the Constitution and were not produced according to the rules of modern lexicography. More often than not these texts were prescriptive, not descriptive. They were idiosyncratic products of their authors, who often had ideological, political, and linguistic agendas. Thus it is simply anachronistic to argue that one ought to consult historical dictionaries from the Founding era to elucidate a set of fixed linguistic facts that can be used to unravel the meaning of the text of the Constitution.

One wonders if any theory drawn from modern ordinary language philosophy could yield an objective theory of constitutional interpretation given that the Founders were themselves deeply divided over the nature of constitutional interpretation. Indeed, one of the most basic divisions within the Founding generation was between those who believed that the Constitution had to be interpreted according to the rules of ordinary language and those who believed that the Constitution ought to be interpreted according to a formal set of rules gleaned from Anglo-American jurists such as Sir William Blackstone. Even if one decided which version of ordinary language philosophy to use, and one perfected a historical method to implement this approach, the result would not be objectivity what one would have done is simply taken sides in one of the Founding era’s most basic disputes. Philosophy cannot replace history and cannot erase the fact that any theory of constitutional interpretation begins with a political choice about interpretive method.

THERE IS something deeply ironic about new originalism that its advocates have missed because they lack an understanding of Founding-era history. Focusing on the public meaning of the Constitution, the chief insight of new originalism, is really not new at all. Such an approach was championed by the Anti-Federalist opponents of the Constitution more than two hundred years ago. Following new originalist methodology would not lead to a restoration of the original meaning of the Constitution, but it would give us an Anti-Federalist Constitution that never existed. This is an odd result, given that the Constitution was largely written by Federalists and ratified by state conventions dominated by Federalist majorities, not Anti-Federalist minorities.

Indeed, in Heller, Justice Scalia used an Anti-Federalist text written by the “Dissent of the Pennsylvania Minority” as one of the keys to unlocking the meaning of the Second Amendment. His methodology makes it easy for him to take a text articulating the beliefs of the dissent of the minority of a single state ratification convention and transform it into a proxy for public meaning. In the wacky world of new originalism, dissent becomes assent, minorities become majorities, and the interpretive method of the Anti-Federalist losers supplants the methods of the Federalist winners. Such creative rewriting of the past makes for interesting alternate histories, but it is not a serious scholarly methodology for understanding the historical meaning of the Constitution. It is a legal scam.

The periodic revival of Anti-Federalist constitutional ideas is in some sense hardwired into the structure of American constitutionalism. While such a process has often been self-conscious, at other times Americans have unknowingly reinvented an essentially Anti-Federalist critique of the Constitution. Given the expansion of federal power in modern America, particularly of executive and judicial authority, a revival of Anti-Federalist criticism seems inevitable. In this sense, new originalism is unremarkable it is simply the latest in a long line of dissenting movements to revive an Anti-Federalist critique of the Constitution. What is a bit embarrassing is that its authors do not seem to be aware of the Anti-Federalist origins of their theory.

There is one significant difference between new originalism and the original Anti-Federalist focus on public meaning. The Anti-Federalists were motivated by a desire to reduce the power of lawyers and judges. Ultimately their goal was to allow the people to have a larger say in interpreting the Constitution. Public meaning was a form of popular constitutionalism designed to limit federal judicial review, not empower it. As originally understood, this theory was not designed to freeze the meaning of the Constitution at the Founding moment, but actually was closer in spirit to modern theories of a living constitution. The supreme irony of new originalism is that, if one follows the original version of this theory, it leads to something like the modern theory of the living constitution—the antithesis of new originalism.

Justice Scalia may believe we have a dead Constitution, the legal equivalent of a fly in amber. This was not how most Americans in the Founding era would have viewed the matter. Originalists, both old and new, argue that the theory of the living constitution lacks the legitimacy of their own theory. In fact, the historical pedigree of the theory of the living constitution is it least as good as traditional originalism, and far better than that of new originalism. The fact that Americans are deeply divided today over the relative merits of originalism and the rival theory of the living constitution ought to come as no surprise—Americans were divided over the very same issue when the Constitution was first proposed more than two hundred years ago.

Saul Cornell is the Paul and Diane Guenther Chair in American History at Fordham University and a Senior Research Scholar in Residence at Yale Law School.


New Constitutional Society - History

During the 1790s, the young republic faced many of the same problems that confronted the newly independent nations of Africa and Asia in the 20th century. Like other nations born in anti-colonial revolutions, the United States faced the challenge of building a sound economy, preserving national independence, and creating a stable political system which provided a legitimate place for opposition.

In 1790, it was not at all obvious that the Union would long survive. George Washington thought that the new government would not last 20 years. One challenge was to consolidate public support. Only about 5 percent of adult white males had voted to ratify the new Constitution and two states, North Carolina and Rhode Island, continued to support the Articles of Confederation. Vermont threatened to join Canada.

  • A huge debt remained from the Revolutionary War and paper money issued during the conflict was virtually worthless.
  • In violation of the peace treaty of 1783 ending the Revolutionary War, Britain continued to occupy forts in the Old Northwest.
  • Spain refused to recognize the new nation's southern and western boundaries.

Establishing the Machinery of Government

The U.S. Constitution created a general framework of government. It would be up to the first president and first Congress to fill in the details.

The new government consisted of nothing more than 75 post offices, a large debt, a small number of unpaid clerks, and an army of just 46 officers and 672 soldiers. There was no federal court system, no navy, and no system for collecting taxes.

The Senate devoted three weeks to debating how the president should be addressed. One committee proposed "His Highness the President of the United States and Protector of the Rights of the Same."

  • To raise revenue, it passed a tariff on imports and a tax on liquor.
  • To encourage American shipping, it imposed duties on foreign vessels.
  • To provide a structure for the executive branch of the government, it created departments of State, Treasury, and War.

The Judiciary Act of 1789 organized a federal court system, which consisted of a Supreme Court with six justices, a district court in each state, and three appeals courts.

To strengthen popular support for the new government, Congress also approved a Bill of Rights. These first ten amendments guaranteed the rights of free press, free speech, and religion the right to peaceful assembly and the right to petition government. The Bill of Rights also ensured that the national government could not infringe on the right to trial by jury. In an effort to reassure Antifederalists that the powers of the new government were limited, the tenth amendment "reserved to the States respectively, or to the people" all powers not specified in the Constitution.


Constitutional Convention

George Washington Addressing the Constitutional Convention, Junius Brutus Stearns, 1856.

The Constitutional Convention, also known as the Philadelphia Convention, met in Philadelphia, Pennsylvania from May 25 to September 17, 1787. It is considered one of the most significant events in the history of the United States as it created the United States Constitution.

Of the 13 original states only Rhode Island did not send representatives. Twelve states appointed 70 individuals to the Constitutional Convention, only 55 attended and 39 signed the Constitution.

Benjamin Franklin was the oldest delegate at 81 years old. The youngest was Jonathan Dayton, representative from New Jersey, he was 26.

Franklin had written a speech that he planned giving on the last day of the Convention, Monday September 17, 1787, before the signing of the Constitution. He was too weak to deliver it and had James Wilson read it to the audience.

The original document did not include many rights and freedoms considered part of the American identity and did not resolve slavery. Many representatives feared the new federal government would overpower the state governments and the liberties that many states had put into their own laws.

The need for a union was necessary. Many states could not agree on a border, others wanted to expand to the west. The purpose of the new constitutions was to work together to defeat the British

Delegates to the Constitutional Convention

Connecticut

  • Richard Bassett
  • Gunning Bedford Jr.
  • Jacob Broom
  • John Dickinson
  • George Read
  • Daniel Carroll
  • Luther Martin
  • James McHenry
  • John Francis Mercer
  • Daniel of St Thomas Jenifer

Massachusetts

New Hampshire

  • David Brearley
  • Jonathan Dayton
  • William Houston
  • William Livingston
  • William Paterson

North Carolina

  • William Blount
  • William Richardson Davie
  • Alexander Martin
  • Richard Dobbs Spaight
  • Hugh Wiliamson

Pennsylvania

  • George Clymer
  • Thomas Fitzsimons
  • Benjamin Franklin
  • Jared Ingersoll
  • Thomas Mifflin
  • Gouverneur Morris
  • Robert Morris
  • James Wilson

South Carolina

  • Pierce Butler
  • Charles Cotesworth Pinckney
  • Charles Pinckney
  • John Rutledge
  • John Blair
  • James Madison
  • George Mason
  • James McClurg
  • Edmund Randolph
  • George Washington
  • George Wythe

Rhode Island did not send representatives to the Convention.

Benjamin Franklin’s Speech at the Constitutional Convention

I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said “I don’t know how it happens, Sister but I meet with no body but myself, that’s always in the right-Il n’y a que moi qui a toujours raison.”

In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects & great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity. Much of the strength & efficiency of any Government in procuring and securing happiness to the people, depends, on opinion, on the general opinion of the goodness of the Government, as well as well as of the wisdom and integrity of its Governors. I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend, and turn our future thoughts & endeavors to the means of having it well administred.

On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.-


The Militia: In History and Today

The Founding Fathers had mixed feelings about military forces. At least 19 (probably more) of the 55 delegates to the Constitutional Convention had served in the armed forces, several with the rank of general. They knew they owed a debt of gratitude to the continental army and the colonial militias for securing their independence from England.

But they also knew that a standing army could be, in the words of Gov. Elbridge Gerry of Massachusetts, "the bane of liberty." One of the grievances the colonists raised against King George III of England in the Declaration of Independence was that "he has kept among us, in times of peace, Standing Armies without the consent of our Legislature," and further, that he had enacted legislation "for quartering large bodies of armed troops among us."

Recognizing the right of the people to organize locally for their mutual defense, the Founders therefore devised a system of government in which military power is divided between federal forces and a popular militia, between federal and state governments, with power over the military divided between the legislative and executive branches of government.

Not only does the right of the people to organize locally for their mutual defense still exist today, the exercise of that right is every bit as important today as it was during colonial times.

Constitution Provides for the Militia

When the Constitutional Convention met in 1787, they gave considerable attention to matters of national defense. They knew the new nation needed a military defense, but they also knew a standing army could be oppressive. Accordingly, they crafted a Constitution that balanced the power of the national government against that of the state and local governments and their militias. Article I, § 8 provided that

The Congress shall have power …

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years

To provide and maintain a Navy

Notice the different language. Congress is empowered to "raise and support" Armies and to "provide and maintain" a Navy, and the two-year appropriation limit for Armies does not apply to the Navy. "Provide and maintain" implies a more permanent force than does "raise and support." The Framers apparently believed a permanent naval force was necessary, but they believed armies should be raised and supported as needed, and in peacetime the nation would rely upon the local and state militias.

Article I, § 8 of the Constitution also addresses the militia:

The Congress shall have power…

To make rules for the Government and Regulation of the land and naval Forces

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

Congress has supervisory authority over the armed forces generally, but the authority to train the militia and appoint militia officers is reserved to the states, provided they conduct that training "according to the discipline prescribed by Congress." Congress also has power to provide for calling the militia into federal service, meaning that Congress can federalize the militia of one or more states or pass legislation authorizing the president to call the militia into federal service.

One more provision of the Constitution deserves our attention &mdash the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The reference to the militia states a reason for the right to bear arms, not a condition thereto. Note that the word "people" is not used interchangeably with the word "state," and that the term "keep and bear arms" implies individual ownership of weapons. Collectivists have argued that the Second Amendment protects only the right of the state to maintain a military force. However, in the 2008 District of Columbia v. Heller decision, the Supreme Court ruled 5-4 that the amendment protects the individual citizen’s right to bear arms (although the court also errantly said this right is subject to state regulation).

In 1792, Congress passed the Uniform Militia Act to give limited direction to the state militias. Section 1 of the act defined militia according to the common historic understanding:

That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of 18 years, and under the age of 45 years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizens shall reside, and that within 12 months of the passing of this act…. That every citizen so enrolled and notified shall, within 6 months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack [etc.] … and shall appear so armed, accoutred and provided, when called out to exercise, or [into] service … and that from and after five years from the passing of this Act, all muskets for arming the militia as herein required shall [be] of bores sufficient for balls of the eighteenth part of a pound. And every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

The definition of the militia as all able-bodied male citizens was in keeping with the understanding of the time.

One purpose of the militia is to defend the liberty of the people against foreign invaders. Throughout history it has worked effectively, and it still works today. In "The Rationale of the Automatic Rifle," Massad Ayoob recounts part of a conversation that took place when Cmdr. Robert Menard attended a 1960 meeting between U.S. Navy personnel and their Japanese counterparts. One American naval officer asked why the Japanese did not invade America’s west coast during WWII. A Japanese admiral answered: "We knew that probably every second home in your country contained firearms. We knew that your country actually had state championships for private citizens shooting military rifles. We were not fools to set foot in such quicksand."

But the militia serves another purpose: the defense of the people’s liberty against domestic tyrants. To many Americans today, this thought seems radical and almost subversive. But consider James Madison’s words in The Federalist, No. 46:

Let a regular army, fully equal to the resources of the country, be formed and let it be entirely at the devotion of the federal government still it would not be going too far to say, that the state governments with the people on their side would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls or one twenty-fifth of the number able to bear arms. This proportion would not yield in the United States an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

And Alexander Hamilton, a continental colonel but hardly a wild-eyed revolutionary, expressed a similar thought in The Federalist, No. 29:

Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped… This will not only lessen the call for military establishments but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little, if at all, inferior to them in discipline and in the use of arms, who stand ready to defend their rights and those of their fellow citizens.

Across the ocean and across the millennia, Aristotle would have agreed:

A king’s bodyguard is composed of citizens carrying arms a tyrant’s of foreign mercenaries…. Members of the constitution must carry [arms] even among themselves, both for internal government and in the event of civil disobedience and to repel external aggression…. For those who possess and can wield arms are in a position to decide whether the constitution is to continue or not.

From the adoption of the Uniform Militia Act of 1792 through the passage of the Dick Act in 1903, militias continued to be a bulwark of the nation’s defense. Usually they were organized locally and consisted of men who were mostly friends and neighbors of each other, and commonly they elected their own officers, although they were subject to state regulation. Just before the War Between the States, the United States Army consisted of 1,108 officers and 15,259 enlisted men, but there were thousands of militias, each consisting of about 30 to 60 men. Quickly after the war began, the Union Army swelled to 2,500,000 men, and the Confederate Army consisted of 1,000,000 men. Both sides relied upon the militia units that fought for their respective states.

After the war, the status of discipline of many militias gradually declined. In the North many of the militias simply ceased to exist, and in the South they were suppressed by the Reconstruction regime. In the 1870s, many states passed new laws requiring male citizens to serve in the militias, but these laws were poorly enforced and largely ignored.

Federalizing the Guard

In 1903, Congress passed the Dick Act, which began the process of federalizing the National Guard. Rep. Charles Dick’s bill divided the American adult male population, other than those serving on active duty, into two categories: (1) the National Guard (the organized militia), and (2) the Reserve Militia (the unorganized militia, all other able-bodied adult male citizens). The 1916 National Defense Act revised the Dick Act and provided that "the militia of the United States shall consist of all able-bodied male citizens of the United States … who shall be more than 18 years of age and … not more than 45 years of age, and said militia shall be divided into 3 classes, the National Guard, the Naval Militia, and the unorganized militia."

And as federal funding for the Guard increased, so federal control over the Guard also increased, and the Guard gradually ceased to be a defender of the people’s liberty against domestic tyranny.

A further reorganization took place in 1933, under which certain specially designated National Guard units received special attention and funding from the federal government. Men who enlisted in these Guard units were considered to have simultaneously enlisted in both their state’s Guard Unit and the National Guard of the United States. Members of these units could be ordered to active duty with the United States armed forces, and upon completion of that service, their status would revert to that of members of their state’s Guard. Guard units were better funded than before, but much of their independence and their identity as representatives of their respective states was lost. It is an old story, repeated many times before and many times since: federal aid leads to federal control.

At first, members of these units could be ordered to federal service only in the event of a national emergency. (Article I, § 8 says Congress can call the militia into federal service "to execute the Laws of the Union, suppress Insurrections and repel Invasions.") In 1952, Congress removed that requirement but provided that, in the absence of a national emergency, a state Guard unit could be federalized only with the governor’s consent. That consent requirement was partially repealed by the Montgomery Amendment of 1986, which provided that a governor may not withhold his consent to federalization of his state’s Guard unit for service outside the United States because of any objection to the location, purpose, type, or schedule of such duty.

In 1987, Minnesota Governor Rudy Perpich objected to the deployment of the Minnesota National Guard to Central America, alleging that the Montgomery Amendment unconstitutionally interfered with his authority over the Guard pursuant to Article I of the Constitution. In Perpich v. Department of Defense, 496 U.S. 334 (1990), the Supreme Court held that, under the dual-enlistment system established in 1933, guardsmen lose their status as militia members when they are ordered to federal service, and therefore the militia clauses of Article I, § 8 afford them and their units with no constitutional protection. The practical effect of this decision is that National Guardsmen are, first and foremost, federal troops their connection with the state militias is increasingly tenuous.

Over the years from 1903 to 1990, Guard units have increasingly come under the authority of the United States government. They still bear the name of their respective states, i.e. the Idaho National Guard, and they still perform functions for their respective states. But it is now clear that they are federal forces first, state forces only second, and only at the sufferance of the federal government. The Guard continues to perform admirable service in the defense of our nation, and they serve heroically to defend their states and local communities against natural disasters like Tropical Storm Katrina. Any American who serves or has served in the Guard should be proud indeed. But the guardsman’s role as defender of the people of his state against domestic tyranny, as envisioned by Madison and Hamilton, has virtually disappeared.

Enter the State Guard/Defense Force

The role the Founders once envisioned for the militia as guardian of states’ rights and the people’s liberties, now falls upon State Guard units, or as some states call them, State Defense Force units. But many Americans have never heard of state defense forces and incorrectly assume the state guard is the same as the National Guard.

During the 1950s, several governors objected to their guard units being federalized and called out of the country. Who, they asked, is going to man the armories or do riot or flood control, if the guard is engaged elsewhere? Congress responded in 1956 by adopting 32 U.S.C. § 109, titled "Maintenance of Other Troops," which provides that

(c) In addition to its National Guard, if any, a State or Territory, Puerto Rico, the Virgin Islands, or the District of Columbia may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.

The act also provides that enlistment in a state’s defense force shall not exempt a person from the draft, and that a person may not belong to a defense force if he is already a member of a reserve component of the armed forces.

At least 26 states, the District of Columbia, and Puerto Rico have established defense forces or State Guard units, and they are spread throughout the country: Alabama, Alaska, California, Colorado, Georgia, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Virginia, and Washington. Most states call this force either the State Guard (as distinguished from the National Guard) or the State Defense Force, but others use different titles, like the California State Military Reserve, the Indiana Guard Reserve, the Massachusetts Volunteer Militia, the New Jersey Naval Militia, or the Ohio Military Reserve. I will refer to them generally as State Guard units. Some of these are very active, others less so.

These State Guard units are not the same as the privately organized militias that received so much media attention during the 1980s and 󈨞s. State guard units are organized under state auspices and have distinctive chains of command that start with the governor (not the president because they cannot be federalized), and then the adjutant general of the state, followed by the commander of the state guard, then the brigade commanders, battalion commanders, and company commanders. In Alabama, as in many other states, the adjutant general is appointed by the governor, and he commands the Army National Guard, the Air National Guard, and the Alabama State Defense Force. The Alabama adjutant general and the commander of the State Defense Force are major generals, and the brigade commanders are either brigadier generals or colonels.

Because they cannot be called to federal service, state guardsmen receive no federal pay. They generally do not receive pay from the state for regular drills and commander’s calls, but they can receive pay when called to active duty by the governor, and for certain other activities they can receive per diem and mileage.

The headquarters brigades of most State Guard organizations contain many retired military personnel, or at least many who have had some prior active or reserve military service. Prior military service is not a requirement at the brigade, battalion, or company levels, but many who serve at these levels do have prior military service and/or service in law enforcement, firefighting, homeland security, or emergency management. Many state guardsman want a military connection but did not choose the total commitment of an active military career and do not have the time to serve in a reserve or National Guard unit. Age limits are often relaxed, and while State Guard units stress physical fitness, they can often work around disabilities and limitations that the active duty military and the National Guard cannot accept. Those who lead and compose State Guard units have a tremendous wealth of experience in military service, law enforcement, homeland security, emergency management, and many other fields that contribute to the defense of their communities and states.

Missions Accomplished

The missions of the State Guard units are set forth in state statutes or regulations. These may vary from state to state, but generally their role is to fulfill the duties of the National Guard when the National Guard is called out of state or otherwise overtaxed and in need of assistance. For example:

&bull During Tropical Storm Katrina (2005), guardsmen of the Alabama 3rd Brigade (South Alabama) were called up to the Gulf states to man food distribution centers and otherwise assist in flood control and crowd control the 2nd Brigade (Central Alabama) and the 1st Brigade (North Alabama) also provided assistance.

&bull After the 9/11 attack, the Alaska 49th Military Police Brigade performed classified security missions for Alaskan pipelines, railroads, harbors, and ports.

&bull In 2007, the Maryland State Defense Force performed assessments of National Guard facilities, joined the National Guard for Exercise Vigilant Guard, a homeland security emergency and terrorism response exercise, and performed health screenings for over 900 National Guardsmen deploying overseas.

&bull During Katrina the Texas State Guard activated more than 1,000 state guardsmen to paid active duty, receiving evacuees at Kelly Air Force Base, the Houston Astrodome, and other emergency centers.

&bull Also during Katrina, the Virginia State Defense Force provided security for armories and assisted in the deployment of National Guard troops.

The South Carolina State Guard has established an effective communications system whereby every state guardsman has an "sg.sc.gov" e-mail address, thus facilitating prompt emergency readiness responses. (Paul Revere would be envious!)

The State Guard is a uniformed service, and most guardsmen wear a variation of the U.S. Army BDU (battle dress uniform) for regular drill and duty, and the army Class A, Class B, or dress uniform for special occasions, always with distinctive State Guard insignia. (Alabama State Defense Force regulations provide that members with prior Air Force service may wear the Air Force Class A or B or mess dress with ASDF insignia.) Most state guard units follow a ranking system similar to that of the U.S. Army. Personnel with prior military service commonly enter the State Guard at the rank they held when they left active duty, with the possibility of promotion thereafter.

The mission of the State Guard is to augment the National Guard, and therefore guardsmen spend much time training and preparing for the missions they might someday be called upon to perform. This training can take many forms: instruction in military procedures, courtesies, drill and ceremony, leadership training, emergency response, CPR, counter-terrorism, funeral protocol, and many others. Several schools for training state guardsmen have been established, including the School of the Soldier and Military Emergency Management Specialist (MEMS) Academy, and specialized schools for chaplains, medics, communications specialists, and others.

True Successors to the Militia

Besides constituting a cost-effective means of fulfilling America’s defense needs and providing many Americans with the opportunity for military service, State Guard units are now the true successors to the militias that the Framers intended as state and local checks upon federal power. In 1997, when the Alabama Freethought Association and the ACLU of Alabama sued to force Etowah County Circuit Judge (later Alabama Chief Justice) Roy Moore to remove a Ten Commandments display from his courtroom, Governor Fob James promised to call up the Alabama National Guard, if necessary, to defend the Ten Commandments display. Had he done so, President Clinton could have countered by federalizing the National Guard. But if Governor James had called up the State Defense Force, President Clinton could not have federalized them. Although State Guard units are not overtly political, their existence is consistent with a constitutional states’ rights philosophy, and in this author’s experience, state guardsmen generally tend to be politically and socially conservative.

Readers who are interested in the State Guard may go to the website of the State Guard Association of the United States (sgaus.org) and click on the link to their respective State Guard unit, or contact the adjutant general of their respective state for further information.

An addendum from the author (March 27, 2009):

My thanks to all who have written the many comments (see below) demonstrate that there is substantial interest in state guard units or state defense forces.

Mr. Gates, my list of state guard units was taken from the State Guard Association of the United States website (sgaus.org). I have brought your comments to SGAUS&rsquos attention, and they assure me that they are checking the states you have mentioned. If in fact these links are not legitimate, you have done SGAUS a great service by bringing this to our attention.

Mr. Cronkhite, I appreciate your kind words. I respectfully disagree with your assertion that modern state defense forces are not within the meaning of the term &ldquomilitia&rdquo as used in the Constitution. The phrase &ldquowell regulated militia&rdquo in the Second Amendment clearly indicates that the Framers expected the militia to have some training and organization, as do Madison&rsquos and Hamilton&rsquos comments in The Federalist, No. 46 and 29. As to whether state defense forces or state guard units constitute &ldquotroops&rdquo as the term is used in Art. I § 10 of the Constitution, the answer might depend on the functions these units perform in their respective states. In either event, Article I § 10 says that states may not keep troops in time of peace &ldquowithout the Consent of Congress.&rdquo Federal statutes authorizing the organization of national guard units and state defense forces clearly constitute the consent of Congress.

Mr. Stertz, recent changes to the Insurrection Act are a valid concern and a good subject for a future article.

Badger, I&rsquoll let you and Mr. Gates work out your differences &mdash hopefully without having to activate the Colorado Front Rangers. I believe people have a God-given right to self-defense, individually and/or collectively. When this right is exercised collectively, that is normally done through a militia with ties to state and local government, because defense is one of the few legitimate functions of government. But that does not mean defense is exclusively the function of government. When government abdicates or fails in its responsibility to defend the populace, the people may organize outside government. But state guard units and state defense forces recognized by SGAUS are linked to state and local government.

Again, my thanks to all who have written. I hope constitutionalists will see state guard units as opportunities for service.

John Eidsmoe, a retired Air Force lieutenant colonel, holds the rank of colonel in the Alabama State Defense Force, is a professor at the Oak Brook College of Law & Government Policy, and serves as legal counsel for the Foundation for Moral Law.


Slavery and the Constitution

Authors: Angela Sailor , Paul Larkin Jr. , Timothy Sandefur , Allen Guelzo, Ph.D. , Sean Wilentz, Ph.D. and Lucas Morel, Ph.D.

Key Takeaways

The 1619 Project mistakenly claims that the Constitution creates a right to slavery.

Although the Constitution did not immediately end or explicitly condemn slavery, the Constitution creates no such constitutional right.

The Constitution’s text created a path for the federal and state political processes to abolish slavery.

Introduction

The question of the hour is whether the Constitution is pro-slavery or anti-slavery. History has shown us that great leaders and reasonable men and women have changed their viewpoints on this question.

Frederick Douglass, the foremost black abolitionist in the 1840s, called the Constitution a radically and essentially pro-slavery document, but by the 1850s, Douglass changed his mind, concluding, the Constitution, when construed in light of well-established rules of legal interpretation, “is a glorious liberty document.”

As we war over America’s heart and soul, many are asking what convinced Douglass to change his viewpoint. Some declare it was what the Framers had hoped would preserve a legacy of freedom for generations to come: silence. Douglass asked, “If the Constitution were intended to be by its framers and adopters a slave-holding instrument, then why would neither ‘slavery,’ ‘slave-holding,’ nor ‘slave’ be anywhere found in it?” That is not the focus of those who challenge the integrity of the Constitution.

Some who challenge the integrity of the Constitution say it is weakened by the existence of slavery in the United States at the time the Constitution was adopted. Slaveholders took part in the framing of the Constitution, and they say slaveholders, in their hearts, intended to secure certain advantages in that instrument for slavery. As Americans who believe in the motto “E pluribus unum,” how do we move forward and bolster the present-day opportunity to live as free men?

We will learn how to answer that question today.

Angela Sailor is Vice President of the Edwin J. Feulner, Jr., Institute at The Heritage Foundation.

The Thirteenth Amendment

What did the Constitution say about slavery before the 13th Amendment became law? Did the Constitution protect the rights of slaveholders? Did the Constitution forbid slavery? Or did the Constitution avoid taking either of those positions and leave the matter entirely to the political process?

What made those questions a contemporary subject was that, from the day that the New York Times published the 1619 Project in August 2019, the opinions expressed in that work touched nerves in American historical and political scholarship, as well as in American life. The thesis of the 1619 Project was that the true beginning of American history was not 1776, when America declared its independence from England, but was in 1619, when the first African slaves arrived in America at Jamestown. The project also claimed that whatever enduring benefits the nation has seen and has granted to the world are attributable to the nation’s slave-owning past.

While the 1619 Project was correct to condemn slavery, particularly on one of its anniversaries (slavery is a despicable institution, and no one is sorry that the Thirteenth Amendment ended it after the Civil War), the 1619 Project is not a work of historical scholarship. Numerous historians have objected to the project on the grounds that it contains an erroneous view of history. A large number of Americans have objected to it on the grounds that it was leftist political agitprop.

To help frame the discussion, this section will play the devil’s advocate. It will argue that the Constitution protected the right of slave-holding states to create that peculiar and evil institution through law. The subsequent sections will then detail why this point of view is erroneous.

This section will articulate two arguments. First, it will begin with making the argument in a manner that would be well-known to lawyers today, and then, second, it will make the argument in a way that would be most persuasive to people in the 18th and 19th centuries.

Argument One: Constitutional Text. Starting with today’s perspective requires one to begin with the text of the Constitution. The most obvious point is that there is no Thirteenth Amendment in the original Constitution. That omission is significant. It perhaps is the dog that did not bark, REF because the Framers knew how to ban certain practices or types of legislation that they found undesirable. Congress cannot pass bills of attainder, ex post facto laws, export taxes, port preferences for some cities over others, or titles of nobility. REF States cannot pass bills of attainder or ex post facto laws, treaties with foreign nations, legislation coining money, laws impairing the obligation of contracts, and titles of nobility. REF Congress knew how to go out of its way to make sure that our nation’s founding document prohibited various types of legislation that it did not want to see either the federal or state governments adopt.

Beyond that, there are four clauses in the Constitution that arguably protect slave-owners’ interests: (1) the Three-Fifths Clause, REF about which I will say more later (2) the Slave Trade Clause, which prohibited Congress from outlawing the slave trade until a date in the future REF (3) the Militia Clause, which allowed the President to call out the militia to deal with insurrections REF and (4) the Fugitive Slave Clause, which required each state to return slaves who had escaped to the state of their origin. REF

The history behind the Constitution supports the evident conclusion of the text itself. The Declaration of Independence said that all men are created equal, but at the time, no state outlawed slavery, and the Declaration itself contained no such provision. The Articles of Confederation, which preceded the Constitution, also did not outlaw slavery. Early congressional legislation is also consistent with this conclusion. It distinguished between “citizens of the United States” and “persons of color,” granting rights to the former, to citizens, that it would not necessarily grant to the latter.

Argument Two: Unenumerated Rights. Finally, we come in that regard to the Supreme Court’s decision in Dred Scott v. Sanford. REF In Dred Scott, the Supreme Court said that the Missouri Compromise could not abolish state law rights over slaves. The effect was not only to declare the Missouri Compromise unconstitutional, but also to ensure that the laws creating this institution in slave-holding states could not be undone by Congress.

The Dred Scott decision also created what has come to be known as the Unenumerated Rights Doctrine, a doctrine that has current contemporary force in cases such as Roe v. Wade REF and Obergefell v. Hodges. REF But they are not the only ones. There are a series of other cases, part of the Unenumerated Rights Doctrine, that are favored by different people in society. For example, the Constitution, as interpreted by the Supreme Court, recognizes a right of parents to non-public school their children. REF The Constitution grants the states immunity in the courts of other states or against federal agencies. REF The Anti-Commandeering Doctrine prohibits Congress from assigning responsibilities to state officers. REF One of the most well-known principles of criminal justice, that a defendant’s guilt must be proven beyond a reasonable doubt, is also an example of this Unenumerated Rights Doctrine. REF

That is how we would argue it today. If you go back to how you would argue back in the 18th century, what was critical then was not whether courts could enforce constitutional rights. This was a pre-Marbury period, REF and certainly a pre-Warren Court and pre-Burger Court period. What was most important to the Republic then was the ability to elect legislators, because the legislative process was seen as the primary threat to individual rights.

Guess what? The Three-Fifths Clause mentioned earlier enhanced the population basis that slave-holding states would have, by allowing them to count three-fifths of every slave they owned as a person towards the number of representatives that they would have in the House of Representatives and the number of presidential electors they had to choose Presidents. If you add that to the equal representation that each state had in the Senate, what you wind up with was a political process that was biased toward the Southern states, all of which had slavery at this time.

Paul J. Larkin, Jr., is the John, Barbara & Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.

Pre-War, Anti-Slavery Constitutionalism

This section will approach the question from a legal perspective in the way that the anti-slavery constitutional thinkers did. This is an aspect of American history that has been unfortunately downplayed, to the point that a great many people, including law students, graduate from school unaware that there even was a tradition of pro-Constitution, anti-slavery thought in the years leading up the Civil War.

The most famous advocate of that view was Frederick Douglass, but he was certainly not the only one. People like John Quincy Adams, Charles Sumner, and Salmon P. Chase were, to one degree or another, adherents of this pro-Constitution, anti-slavery view. Unfortunately, today’s history distorts their records by over-emphasizing the Garrisonian Abolitionists, which was the group of abolitionists who thought the Constitution was an evil, pro-slavery document, and therefore that it should be abolished. Those people had very little influence on American political and legal development in the Civil War era. It is a shame that the pro-Constitution, anti-slavery thinkers like Douglass are left out in a lot of these discussions.

Two Rules of Legal Interpretation. So how would a constitutional abolitionist make the case that slavery is unconstitutional? REF They would begin with two basic rules of legal interpretation. The first one: Only the text on the paper itself is the law when you are reading the Constitution—not the subjective desires of the people who wrote the document. Only the words of the Constitution are the law and are legally binding.

The second rule: We should interpret the Constitution as pro-freedom whenever possible. This comes from an 1805 Supreme Court case called United States v. Fisher, REF in which the Supreme Court said we have to interpret the Constitution as being pro-liberty unless there is a clear instruction from Congress or from the lawmakers saying otherwise. Lawyers call this a “clear statement rule,” and we still use that kind of rule in interpreting the Constitution today. REF

With those two rules of interpretation in mind, now we look at the Constitution. It starts out with those big words, “We, the People of the United States.” REF Who are those “people”? The Constitution contains no definitions section, so to understand who “the people of the United States” are, we refer back to the Declaration of Independence, which sets forth who the people of the United States are. The people of the United States are the same “one people” that dissolved their political bands with Great Britain in the Declaration. REF The “one people” is referred to as a united body, not divided by color. There is no reference to color lines in either the Declaration or the Constitution. We have no legal reason to believe that black Americans are not part of “the people of the United States.” The Constitution draws no such line. REF

If that is the case, then why should we think that the Constitution is only intended for white Americans? We have no reason to believe that. In fact, the word “slave” and the word “slavery” do not appear anywhere in the Constitution of 1787. It is never mentioned. That is pretty remarkable. After all, if the Constitution is supposed to protect slavery, you would think it would at least mention that. What Douglass says is that reading the Constitution and saying that it is pro-slavery is like claiming to own property according to a deed, and then when you look at the deed, it contains no reference to the property on the piece of paper. REF That would be a pretty weird argument to make.

In other words, the burden of proof is now on the pro-slavery side to prove that the Constitution is pro-slavery REF —and they really cannot do it. There is no federal guarantee of slavery. There is no express limit on Congress banning or limiting it. Of course, the provision regarding the Western Territories says that Congress has power to legislate however it wants with regard to the Western Territories, REF which, of course, was the real issue that sparked the Civil War.

What about the four provisions that the previous section mentioned referring to slavery circuitously? Again, none use the word “slavery.” There is the Three-Fifths Clause. REF There is what we call the “Fugitive Slave Clause.” REF There is the rule about importation and exportation of slaves. REF Douglass’s answer to that was this: The Three-Fifths Clause does not protect slavery. It recognizes that slavery existed at the time, but it did not guarantee it. In fact, it rewarded states that abolish slavery by giving them more representation in Congress.

The Fugitive Slave Clause does not refer to slaves. It says “persons” from whom “labor” is “due,” but labor is not due from slaves. They are the victims of injustice, who have not been given due process of law, so labor cannot be due from them. Labor is due from apprentices or indentured servants. And it is true that runaway apprentices and runaway indentured servants were a serious legal problem in the Nineteenth Century. As for the Importation Clause, in fact, the Importation Clause did allow Congress to ban slavery in 1808, which it promptly did—in 1808. These provisions, although they obviously refer to slavery, do not protect slavery. REF

This is an important point. The anti-slavery constitutional thinkers did not say that the Constitution banned slavery. REF Obviously it did not. Instead, they said three things.

  • First, it provides no guarantee of slavery at the federal level
  • Second, it allows Congress, if it chooses to do so, to limit or even abolish slavery and
  • Third, its provisions are in the long run inconsistent with slavery, including things like due process.

If black Americans are persons, then the Constitution says they cannot be deprived of liberty without due process of law. REF That is obviously inconsistent with slavery. What about the Bill of Attainder Clauses? REF Slavery is a kind of bill of attainder, and yet the Constitution prohibits bills of attainder. REF The Constitution prohibits the seizure of persons without legitimate lawful authority. REF Obviously, slavery was inconsistent with that.

The most important provision was the Privileges and Immunities Clause, which said that people who are Americans cannot be deprived of their rights when they travel from state to state. REF The problem with this was that black people could be citizens in some states, such as Massachusetts, and then travel to a place like South Carolina and be deprived of their liberty in violation of the federal guarantee. REF

Those are the three principles of the anti-slavery Constitution: the Constitution does not guarantee slavery, it allows the federal government to limit or abolish it, and there are other provisions of the Constitution that, in the long-term will, prove inconsistent with slavery.

Going back to the concluding remarks in the previous section, it is not true that since the 17th and 18th Centuries were a pre-Marbury world, it was uncertain whether courts could enforce individual rights. Common law courts protected “unenumerated” individual rights all the time. Under the British Constitution, the British courts protected individual rights without any written bill of rights at all. The idea that courts could protect individual rights was a well-respected and well-recognized principle at the time. That is why a lot of anti-slavery constitutional thinkers went to court to make their argument.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute where he also holds the Duncan Chair in Constitutional Government. He is the author of The Conscience of the Constitution (2013) and Frederick Douglass: Self-Made Man (2018).

The Slaveholders’ View: An Anti-Slavery Constitution

This section will look at the question of a pro-slavery Constitution from the point of view of the slaveholders, which is not often a point of view considered in many of these discussions. There, we discover that they, too, did not believe in a pro-slavery Constitution. It was one of the primary arguments that slaveholders used in the secession winter of 1860 to justify the secession of the slave states—that their Northern free-state brethren had somehow reneged on the guarantees of the Constitution, which otherwise protected the slave states in their ownership of slaves.

Louisiana’s Judah P. Benjamin, in his departing speech to the Senate, insisted that “under a just and fair interpretation of the Federal Constitution,” it was impossible to “deny that our slaves, which directly and indirectly involve a value of more than four thousand million dollars, are property” and “entitled to protection in Territories owned by the common Government.” Still, even though “the Constitution heads you off at every step in this Quixotic attempt,” the North was persistent in its threat to slavery, and secession was the only cure. REF

Similarly, Robert Barnwell Rhett was indignant, in his “Address of the People of South Carolina,” at how “by gradual and steady encroachments on the part of the people of the North. the limitations in the Constitution have been swept away.” While “the Southern States, from the commencement of the Government, have striven to keep. within the orbit prescribed by the Constitution,” the northern states, accused Rhett, “were planning nothing short of “the overthrow of the Constitution of the United States. ” REF

This sense that the Constitution was a rampart that sheltered slave owning had a long history, stretching back at least as far as the ratification process in 1788. Charles Cotesworth Pinckney assured his fellow South Carolinians that the new Constitution provided “a security that the general government can never emancipate” slaves, because “no such authority is granted.” To the contrary, Pinckney explained, “we have secured an unlimited importation of negroes for twenty years. Nor is it declared that the importation shall be then stopped it may be continued. We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before. In short, considering all circumstances, we have made the best terms for the security of this species of property.” REF

Nineteenth-century abolitionists, for their part, took Pinckney at his word. Frederick Douglass, in 1849, argued that, from the Three-Fifth Clause to the Insurrection Clause, “the Constitution, not only consented to form bulwarks around the system of slavery, with all its bloody enormities, to prevent the slave from escape, but has planted its uncounted feet and tremendous weight on the heaving hearts of American bondmen, to prevent them from rising to gain their freedom.” REF And several important modern historians of slavery have argued forcibly that Douglass and Pinckney were right. “Slavery would be protected by several interlocking provisions” in the Constitution, writes David Waldstreicher, so that “in growing their government, the framers and their constituents created fundamental laws that sustained human bondage.” REF

Still, there was no absolute agreement on construing the Constitution as a pro-slavery document. As Michael Conlin has shown, the Three-Fifths Clause gave slavery less heft in national affairs than it might have seemed, since Northern electors in the Electoral College enjoyed a 53 percent to 47 percent edge as early as 1796, percentages which continued to swing against the South, so that by 1860, Northern electors enjoyed a 60–40 superiority. REF And anti-slavery northerners from Salmon Chase to Abraham Lincoln argued that the Constitution in fact gave no national sanction to slavery. Even Frederick Douglass, in 1852, swung over to the view that, “interpreted, as it ought to be interpreted, the Constitution is a Glorious Liberty Document.” REF

But what has been almost entirely missed in the debate over the Constitution and slavery is the degree to which Southern slave-owners themselves, when they are only talking to themselves, turn out to have agreed with Lincoln, Chase, and Douglass, and admit that the Constitution was a bruised reed for slavery to lean upon.

Ironically, the slave-owners’ doubts actually begin with Pinckney: His attempt to convince the South Carolina ratification convention that the slavery was sheltered by the Constitution was done in the face of anti-Federalist slave-owners who doubted that it did any such thing. “Your delegates had to contend with the religious and political prejudices of the Eastern and Middle States,” Pinckney pleaded, and they should realize that the deal they made was the best “it was in our power to make. We would have made better if we could.” REF

Slave-owners’ constitutional peace of mind did not improve with time. In the midst of the agitation over the Compromise of 1850, “J.A.C.” (which may have been John A. Cleveland, a Charleston slave-owner) took to the pages of the Southern Quarterly Review to warn that Southerners had made a grave mistake if they imagined that “the clause of the constitution which allows a representation for the slave population would withstand six months agitation in the Northern States.” The Constitution was a “parchment idol,” and “Southern people” should not be “deceived to the conclusion that the Constitution is the basis of an Union of equal States.” It was, in fact, “the article of a trading partnership,” a partnership which could not be relied upon to protect them. REF

One year later, the Review was even more pessimistic. “No legal assurances of future security are to be found in the constitution” for slavery, it concluded. REF DeBow’s Review was just as pessimistic. Writing for DeBow’s in 1855, the Louisiana planter John J. Perkins claimed that the Constitution lacked the strength to resist bending into an anti-slavery shape. “The compends and condensed commentaries upon the Constitution, prepared for schools and business men. all gloss over and misrepresent—in a manner calculated to deceive—the rights of the slaveholder under the Constitution while they enlarge and artfully magnify, by every possible construction, the degree of power given to the federal government over the subject.” REF

When slave-owners were candid, they could explain quite clearly why the Constitution gave them no confidence. Edmund Ruffin, Virginia’s arch-secessionist, frankly admitted that “the forms or letter of the constitution may be used as to destroy” slavery. In fact, claimed Ruffin, “without the need of infringing the letter of a single article of the Constitution, the southern states, their institutions, property, and all that is dear to them. will be at the mercy of their fanatical and determined enemies….Negro slavery may be thus abolished, either directly or indirectly, gradually or immediately.” REF

Oddly, the most obvious concession of the Constitution’s weakness on slavery was hidden in plain sight, in Chief Justice Roger Taney’s infamous majority opinion in Dred Scott v. Sanford in 1857. It was precisely because the Constitution had resisted any suggestion that there could be “property in men,” that Taney had to rush in, in an act of judicial re-interpretation, to deny any recognition of due process or privileges and immunities for African-Americans, free or otherwise.

The ultimate proof, however, of the slave-owners’ real lack of faith in the Constitution was how, the moment they lost political control of the constitutional processes with the election of Lincoln, the slave-owners immediately tossed the Constitution aside, attempted to secede from the Union, and wrote a new Constitution which, this time, they believed would secure to them what the old one had not. It would give them a very different Constitution than the old one, looking forward (as James Stoner has written) to something more closely approximating a British parliamentary system. REF But that is, after all, the point: The slave-owners’ actions speak louder than their words, and their actions were an admission that the old Constitution was not their tool, much less their friend.

Allen C. Guelzo, PhD, is Director of the Initiative on Politics and Statesmanship at Princeton University.

Abolition and the Framers

Having arrived at the Civil War, this section will look back to 1787, first, to clarify something that comes up a lot, and that is simply this: why did the Framers not abolish slavery? The facts of the matter are pretty plain: There simply was no chance whatsoever that the Framers were going to abolish slavery in 1787. It was not because they were singularly bad people. And it was not because the Southern slaveholders somehow cowed the Northerners into submission, as if slavery’s outright abolition was ever on the agenda in Philadelphia. REF

There were at least three very good reasons why the issue was a non-starter.

  • One has to do with property, which the Constitution was framed in part to protect. Even with all of the things that they did do regarding coinage and contracts, chiefly in Article I, the Framers were not going to interfere with the basic property laws of the established states, Southern states any more than Northern. That is, the Constitution would no more abrogate established southern laws regarding enslavement than it would, say, the Pennsylvania abolition law of 1780, which declared slavery an offense against nature.
  • Second, in 1787, slavery was still a fully extant institution in eight of the 13 states, including New York and New Jersey. Even if anyone in the convention had attempted to do so, it would have been virtually impossible for the proposed Constitution to abolish slavery summarily or to authorize the new national government to do so, and then expect to gain ratification in any of the states outside of New England and Pennsylvania.
  • Third, and perhaps most important, anti-slavery was a very new thing in the world in 1787, at least among those who were not enslaved. Before the Revolution, as John Jay, the great Federalist and early abolitionist once observed, there was hardly any opposition to slavery among whites in America, or, for that matter, in any part of the Atlantic world. REF Even among the Quakers, among whom anti-slavery protests arose as early as 1688, it took decades before racial slavery truly became illicit, and the Quakers were, of course, a tiny minority. It was the coming of the Revolution that helped encourage the creation of an unprecedented anti-slavery sentiment outside the ranks of the enslaved, which created in the rebel colonies the very first noticeable—if somewhat dispersed and ramshackle—anti-slavery movement anywhere in the Atlantic world. REF

Anti-slavery enjoyed some great successes before 1787 in the North, including the appearance of the first written constitution in history to abolish adult slavery (in the breakaway district of Vermont) enactment of the first gradual emancipation laws of their kind in Pennsylvania, Connecticut, and Rhode Island and the elimination of slavery by judicial rulings in Massachusetts and New Hampshire. Yet the idea that this fairly recent movement was going to be able to abolish slavery across the nation by fiat in 1787, as some New England abolitionists seemed to desire, was, to say the least, quixotic. It ascribed to the anti-slavery movement far more power in national counsels than it possibly could have had.

Now, though, let us consider the Framers’ deliberations in 1787. Everybody knows that there were many slaveholders at the Federal Convention, upward of 25 of the 55 delegates. What rarely gets talked about is that there were many avowed anti-slavery delegates at the convention as well, including the president of the Pennsylvania Abolition Society, Benjamin Franklin. These delegates knew that, while they could do nothing to abolish slavery under the new Constitution, they could prevent the pro-slavery delegates from enshrining human bondage in national law. They could also directly authorize the new government, if it so chose, to hinder slavery’s expansion. A key issue for them, in this connection, was the Atlantic slave trade. Most people at the time believed, that, without at least the possibility of continuing the trade, slavery itself would be endangered. Every prominent emancipation proposal up to that point had called for ending the Atlantic slave trade as the first step.

At least some of the anti-slavery delegates came to Philadelphia prepared to try and make sure that the new government would have the power to abolish the trade. Abolitionists outside of Congress, in the Pennsylvania Abolition Society (PAS) and the New York Manumission Society, debated how best to press the convention on the matter and the PAS sent an anti-slave trade petition to Franklin, with a request that he present it to his fellow delegates. In part on the advice of the PAS’s secretary, Tench Coxe, who considered the petition “overzealous,” Franklin laid it aside, but he knew that the convention would soon enough take up the matter. REF

Franklin, who was something of a marked man on the matter of slavery, was politic enough to keep his own counsel inside the convention on the issue he knew very well what the anti-slavery delegates were up against. Indeed, after more than two months of debate and discussion, the lower South delegates managed to devise a draft Constitution, which would have given the new federal government no power whatsoever over the Atlantic slave trade. Led by the South Carolinians, the pro-slavery advocates called it a deal-breaker: unless the convention left the Atlantic slave trade entirely in the hands of the states, the Constitution was doomed.

Fortunately, the anti-slavery delegates, principally Gouverneur Morris of New York (although he officially represented Pennsylvania), called the pro-slavery men’s bluff, tore the draft Constitution to shreds on the slavery issue, and secured to the federal government the authority not simply to regulate the Atlantic slave trade but to abolish it outright. It is true that, through some careful and crafty bargaining, the lower South delegates, led by Charles Cotesworth Pinckney, managed to get an extension forbidding Congress from acting until 1808, a move which James Madison, an opponent of the trade, immediately decried. Nevertheless, even with the delay, the outcome in Philadelphia was the first major blow against the Atlantic slave trade taken in the name of a national government anywhere in the Atlantic world. To this extent, the anti-slavery delegates succeeded beyond anything the slaveholders vowed they would permit.

None of which is to say that the Constitution was an anti-slavery document the lower South, and even some of the Northern delegates, certainly would have bolted if it were. Quite apart from the so-called federal consensus barring national action in states where slavery existed, the pro-slavery side came away with compromises sufficient to persuade their constituents that the new federal government actually gave strong protection to slavery. The Three-Fifths Clause was a concession, although not as much of one as the most ardent pro-slavery delegates wanted. The Fugitive Slave Clause—adapted from an anti-slavery proposal regarding the Northwest Territories advanced by Rufus King in 1785, which evolved into the Northwest Ordinance of 1787—gave nominal added protection to slavery, albeit with no stipulated active role by the federal government.

Set against these compromises, though, stood the convention’s handling of the concept of property in man, the legal as well as moral essence of slavery. At the state level during the fights over northern emancipation, the pro-slavery advocates argued, above all else, that they enjoyed a vested property interest in property in slavery that no government could touch. The anti-slavery counter-argument was very simple: There could be no vested right in slavery because property in man is simply illegitimate, an offense to God and natural law.

Having lived through, and in some cases participated in, these struggles over northern emancipation, the anti-slavery northerners at the convention, joined by delegates ranging from Luther Martin of Maryland to James Madison of Virginia, were absolutely determined to keep the idea of property in man out of national law. They succeeded in doing so. Madison’s notes of the convention debates show incontrovertibly that while the Constitution would tolerate slavery where it already existed, it would not recognize the institution in national law—which is say that slavery would have no presumed legitimacy in areas under national jurisdiction, including the national territories.

Based on a combination of scant ambiguous evidence and sheer projection, some historians have argued that the Framers deliberately left the word “slavery” out of the Constitution in order to assuage their guilt and fend off charges of hypocrisy from foreign critics. REF That is why, these scholars argue, the Constitution often uses what they describe as circumlocutions such as “persons held to labor or service,” shamefully to hide the fact that they had hard-wired a pro-slavery Constitution. The assertion is groundless. The evidence, albeit flawed, about what the delegates actually said, as opposed to what later historians claim and insist they were really saying, shows that the convention took its decision to exclude property in man not out of cunning or cowardice, but out of conviction.

This did not guarantee, by any means, that under the new Constitution slavery would be ended anytime soon. Again, it needs emphasizing that if the Constitution was not pro-slavery, neither was it anti-slavery. Without giving, as Massachusetts delegate Elbridge Gerry remarked, “any sanction” to slavery, the Framers left slavery’s future up to political process. REF For a long time, the slaveholders and their Northern allies had enough power in the Congress to ensure that slavery would not be interfered with. (It should be noted that the Three-Fifths Clause made little or no difference to the expansion of slavery of what would be the cotton kingdom beyond the original Southern states: The issue was political, not constitutional.)

This situation began to change after the War of 1812 when it became increasingly apparent that, while the cotton revolution had given plantation slavery a new lease on life, the rapid growth of the Northern population, combined with the fitful growth of anti-slavery opinion, left slavery increasingly vulnerable in national politics. The Missouri Compromise crisis, by yielding a compromise that banned slavery in the great preponderance of the Louisiana Purchase lands, made clear that the Framers had invested the national government with formidable powers, not to abolish slavery directly but to check its growth, to hamper it, to hinder it, and to put it, as Abraham Lincoln would later remark, on “the course of ultimate extinction.”

Once the anti-slavery side in the North began gaining traction in Congress, and once the territorial issue re-entered national politics, the political initiative began gradually to shift away from what became known in the 1840s as the Slave Power. As Professor Guelzo has noted, that shift seemed completed with the election of Abraham Lincoln to the presidency in 1860 the writing was on the wall, and the slaveholders’ rebellion began. Yet Lincoln’s Republican Party could only have existed—and the anti-slavery cause could only have attained national power—because of what the Framers did in 1787, by keeping property in man out of the Constitution.

This did not make the Constitution, it bears repeating one last time, an anti-slavery document. The anti-slavery Framers did not sit around saying, “In 1809, this man, Lincoln, is going to be born, and everything’s going to work out.” For all of their flawed wisdom, the Framers were not clairvoyant and the politics of slavery and anti-slavery could have worked out very, very differently.

But they worked out the way that they did in 1865 in no small measure because of what the Framers did in 1787. To that extent, the anti-slavery elements in the Constitution, which anti-slavery constitutionalists would develop over the succeeding 70 years, were and are absolutely crucial in understanding the nation’s founding.

Sean Wilentz, PhD, is George Henry Davis 1886 Professor of American History at Princeton University.

Lincoln and Douglas: Federalism and Founders’ Intent

The great conundrum of 21st-century Americans looking back to the Founding is squaring their many statements affirming human equality and natural rights and condemning slavery while they continued the practice of slavery. Many today simply see this as rank hypocrisy and unwittingly find themselves agreeing with U.S. Supreme Court Chief Justice Roger B. Taney and Illinois Senator Stephen A. Douglas (D–IL) , who concluded that the founding generation could not have meant “all” when they wrote “all men are created equal” because they did not immediately free all American slaves. Therefore, in the words of Douglas, “This government of ours was founded, and wisely founded, upon the white basis. It was made by white men for the benefit of white men and their posterity, to be executed and managed by white men.” REF How could Abraham Lincoln not draw the same conclusion?

When Lincoln looked back to the Founders for guidance on how to deal with the growing crisis over slavery, he was not the only one who appealed to the Founding Fathers. Stephen Douglas was the leading Democrat in the 1850s, and he claimed that he knew better than Lincoln what “our Revolutionary fathers” thought about the question of slavery. Douglas cited the Founders by name: “Washington, Jefferson, Franklin, Madison, Hamilton, Jay, and the great men of that day made this government divided into free states and slave states, and left each state perfectly free to do as it pleased on the subject of slavery. Why can it not exist on the same principles on which our fathers made it?” REF Douglas claimed his policy aligned more closely with the Founders’ hopes for the new republic. In Lincoln’s mind, the future of freedom and the eventual demise of slavery depended on whose interpretation of the Founders was correct.

Lincoln did not believe that the Constitution was designed to protect slavery per se and certainly did not agree with the 1857 Dred Scott opinion by Chief Justice Roger Taney. He did not think that Taney was correct in stating, “The right of property in a slave is distinctly and expressly affirmed in the Constitution.” REF Lincoln argued during his 1858 debates with Douglas “that the right of property in a slave is not distinctly and expressly affirmed in the Constitution, and Judge Douglas thinks it is.” REF Lincoln did not believe the Founders were hypocrites, generally speaking. As he put it, “We had slavery among us, we could not get our constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more, and having by necessity submitted to that much, it does not destroy the principle that is the charter of our liberties.” REF He thought the Founders did not think they could free themselves and free their slaves at the same time.

As Professor Harvey Mansfield recently put it, “The American founding couldn’t be perfect from the start. It had to progress towards its goal.” REF Put simply, the founding generation of Americans did not believe that they could both free themselves and free their slaves without hazarding the success of both their independence and their new way of governing themselves. However, once they had secured their independence, what did they do collectively with regards to the state institution of slavery? Did their federal Constitution indicate a desire to strengthen slavery’s hold on the American people or did the Framers attempt to reduce their dependence upon the peculiar institution?

Lincoln answered by observing that the U.S. Constitution, unlike the Articles of Confederation, empowered Congress to ban the importation of slaves in 1808. “A Constitutional provision was necessary to prevent the people, through Congress,” Lincoln noted, “from putting a stop to the traffic immediately at the close of the war. Now, if slavery had been a good thing, would the Fathers of the Republic have taken a step calculated to diminish its beneficent influences among themselves, and snatch the boon wholly from their posterity?” REF

If the federal government did not possess the authority to abolish slavery where it already existed in the states, then the Founders attempted to begin its abolition by preventing its continued supply. It was believed at the time that cutting off the supply would produce its eventual demise. In addition, under the Articles of Confederation and the Constitution of 1787, Congress passed an ordinance banning slavery from the Northwest Territory, the only territory owned by the United States at that time. REF Taken together, these were early attempts at the national level to prevent both the supply and expansion of slavery on American soil. The expectation was that slavery would eventually wither on the vine and the nation would peacefully outlive the utility of slavery. Jefferson, Madison, and others feared a race war if emancipation occurred immediately and en masse. REF

Of course, these actions and expectations all occurred prior to the invention of the cotton gin in 1793, prior to the enormous profitability of plantation-grown cotton as an export, and what then became the extraordinary productivity of slave labor in harvesting that cash crop. To be sure, South Carolina and Georgia were always resistant to national control over slavery in their states, and they exercised outsized power as a minority of the American states at the Constitutional Convention.

Thus, to speak of the Founders when it came to expectations regarding slavery over the long haul is to speak in general terms and not to affirm an opinion held by every significant political player in this tragic drama. This is what produced some of the debates at the convention and the eventual compromises over slavery in the Constitution. Madison expected that these would lead to the demise of slavery over time. REF

In his “House Divided” speech, Lincoln predicted, “Either the opponents of slavery will arrest the further spread of it and place it where the public mind shall rest in the belief that it is in course of ultimate extinction or its advocates will push it forward until it shall become alike lawful in all the states, old as well as new, North as well as South.” REF Those were the stakes in 1858, and Lincoln tried to show white Northerners that the key to preventing the spread of slavery was interpreting the Constitution as empowering Congress to ban slavery in the territories.

This was contrary to Taney’s ruling in Dred Scott, but Lincoln believed the Constitution belonged to the American people, and if they disagreed with the Supreme Court, they could work politically to get the Court to reconsider its ruling. REF In fact, as President, Lincoln would sign into law a ban against slavery in the District of Columbia on April 16, 1862, and two months later a ban against slavery in all the territories, even with the Dred Scott ruling still on the books. The Thirteenth Amendment made the constitutional conflict moot, but Lincoln and the Republicans believed an anti-slavery interpretation of the Constitution was worth the political challenge.

Lucas E. Morel, PhD, is Senior Fellow of the Claremont Institute, and Head of the Politics Department at Washington & Lee University

Discussion

Mr. Larkin: Professor, thank you very much. I would now like the remaining members of the panel to join us. I want to ask if anyone has any comment that he would like to offer based on the remarks of the people who spoke after. That would be Timothy, Allen, and Sean. Let me go in reverse order. Sean, do you have anything that you would like to add to what Professor Morel said?

Professor Wilentz: All I can say is ditto. Lucas gave a very lucid account of how Lincoln, in particular, understood the question.

Mr. Larkin: Allen, anything you would like to add?

Professor Guelzo: I’m always impressed by the obduracy of the Southern delegates in the Constitutional Convention. When I say the Southern delegates, I am really talking about South Carolina and Georgia, their obduracy on the subject of slavery. They folded their arms and said, “We will not be part of a union that does not allow us to continue with slavery or continue to import slaves for at least some period.” On that, they were prepared to see things break up. There really was a serious threat that the Union might, in fact, break up. We think there is a natural progression, because we are looking at this from our perspective. We think this is natural progression, from the Continental Congress to the Articles of Confederation to the Constitution, and it was just seamless, and it was going to happen anyway.

That is not necessarily the case. There were many people who fully expected that even in the last moments of the Articles of Confederation that the entire federal Union would break up into a variety of small confederacies. If that had happened, the results probably would not in the long-term have been pretty. Those Southerners fought hard for that. In many respects, they were going to demand that as a concession. In order to get a Constitution and to keep the Union together, Northerners are going to have incentives to say, “All right, we’ll make these allowances,” but watch how they make those allowances.

Roger Sherman, Oliver Ellsworth, when this question is pushed on them in the debates in August of 1787, what they said is, “All right, we’re not going to push on the issue about slavery or the slave trade, because slavery’s going away anyhow.” Sherman says, “Slavery’s going to disappear in a few years.” Ellsworth says, “Slavery’s on its way out. In a few years, there will not be any trace whatsoever that there was such a thing as slavery in America, so let’s not kick the sleeping dog. Let’s move ahead, because the Constitution that we’re making and the union that we’re creating is going to point us towards an anti-slavery conclusion eventually.”

Looking at what they had to say, you really have to put the question in terms of shall we have a union where we let the slave-owners break the whole thing to pieces, especially when the slavery issue was, as many people thought then, going to disappear anyhow. You set up the Constitution so that it accommodates that disappearance, and you sit back and you wait for it to happen, which it did not do. That was for reasons that were beyond the power of the Constitutional Convention to understand. They were not, after all, prophets with crystal balls. They could not see what was going to happen in the next 20, 30 years in the economy of the United States.

Professor Wilentz: It is true they bullied, they yelled Pinckney and all of the rest of them, but they lost. They lost on the slave trade. They said, “This is a deal breaker. We’re out of here,” and then they did not leave. I think that one of the things we have to deal with is not simply the fact of anti-slavery constitutionalism at the convention, but their power. They were strong. They made the Southerners eat crow more than once.

Professor Guelzo: I think interesting to look at, too, the terms in which they demanded the continuation of the slave trade. They were willing to talk about 20 years, because in large measure—and this is an explanation that surfaces in the ratification convention in South Carolina—what they are looking for is basically to make up the slave population they had lost to British occupation. The argument that is often—David Ramsey makes this argument—that what we are looking at, South Carolina’s full of waste places, we need cheap labor in order to make them productive, so we need to replenish the supply, and when that supply is replenished, then we will be content. When that supply was replenished, they were not entirely content. You can doubt some of the sincerity there, but that is the argument that is made. What we are looking at is something provisional. What we are looking at is something temporary, because if we do not, our state economy is going to go into the tank. If it does, then that is going to create an imbalance of power in this new constitutional arrangement.

Mr. Larkin: Let me ask another audience question. I’d like panelists to discuss the significance of the ban on slavery in the Northwest Ordinance. To what extent, for example, is it Exhibit A that can be offered in defense of the argument that the Constitution did not protect slavery, because if it did, then the entire Northwest Ordinance, one of the earliest pieces of the nation’s legislation, was unconstitutional from the outset? Please, what was the significance of the ban on slavery in the Northwest Ordinance?

Professor Guelzo: Certainly, Lincoln thought that was Exhibit A, because in the Cooper Institute speech in February of 1860, he makes it Exhibit A that the Northwest Ordinance, something which is in its first form adopted by the Confederation Congress and then readopted in 1787. It contains this explicit ban on slavery in the territories that were organized north of the Ohio River, and the wording of Section 6 of the Northwest Ordinance, in fact, becomes the model that is used for the wording of the Thirteenth Amendment—just picks it up and copies it completely.

People very widely understood the Northwest Ordinance that way to be an anti-slavery statement. Now bear in mind that that provision was not uniformly applied in the organization of those territories. There was a lot of unevenness. There were a number of exceptions. There were a number of lacunae in that, so that it looks more like a rumpled blanket than a simple sheet that eliminates slavery completely, and yet it was an extraordinary statement in its own right, put into national law governing the future of these territories, which had fallen into the hands of the United States administration as a result of the Treaty of Paris.

Professor Morel: I would just add that Lincoln liked that example and quoted it often precisely to show that you cannot have an anti-slavery Constitution without an anti-slavery people. For him, it showed the impulse for freedom, which is an impulse against slavery. You cannot get rid of slavery, as they thought at the time, immediately. This was the number one way to prevent it from continuing to entrench itself on American soil: Keep it from expanding and then, as early as possible, which turned out to be January 1st, 1808 (Jefferson signed it into law the previous year), ban the importation of slaves, and the hope was that slavery would die on the vine.

Mr. Sandefur: What Douglass and Lincoln would have pointed to demonstrate that America was intended to be a place of an anti-slavery people was the Declaration of Independence. When you talk about the Northwest Ordinance, that is one of the organic laws of the United States. But another one of the organic laws of the United States is the Declaration. The issue that the anti-slavery constitution insisted upon was on the legal significance, not just as a rhetorical or political document, but the legal significance of the Constitution of the United States, which appears in the Statutes at Large (at volume 1, page 1) and in the U.S. Code REF and is a law. REF

The reason this comes up is before this conversation started, we were talking about this book, the Mark Graber book—Dred Scott and the Problem of Constitutional Evil—and this is a perfect example of what we are talking about. He says, “Whether the persons responsible for the Constitution thought Constitutional protections for property encompassed property and human beings is unclear. Both pro [sic] and anti-slavery are plausible interpretations of the Constitution.” REF Then on page 86 he says, “What Americans needed—and what Constitutional law would have no capacity to provide—was the political consensus necessary for decisive choice to be made between those two.” REF Lincoln would have said, we have the key to that decisive choice. It’s the Declaration of Independence. That is the deciding factor in this argument.

This is not discussed in any detail in Graber’s book. But that is really what this issue is about, when Lincoln says in the Gettysburg Address, “[d]edicated to the proposition that all men are created equal”—today’s argument about the 1619 Project and similar things is an argument about what proposition America is dedicated to. If you do not believe America is dedicated to the proposition that all men are created equal, in a legal sense as well as a political and rhetorical and spiritual sense, then what is it that you think we are dedicated to? That is what this discussion’s really about. REF

Professor Guelzo: I am curious in this respect that when we talk about the phrase “property in man,” that, of course, is James Madison’s phrase so often quoted from the records of the Constitutional Convention. It is not only Madison. [It is] Roger Sherman also. It is almost literally the same words, “We cannot be writing a Constitution that endorses the idea of property in men.” The fundamental tenet of slavery itself, that human beings could be chattel property, is something that the desires of the Constitution make very clear has no place in the Constitution and no place in the organic law of the United States. That is what leads ineluctably to what you have with the Northwest Ordinance. It leads to the banning of the slave trade, because if there could be property in men, why is there this possibility of banning trade in what would otherwise have been considered property? That would have been a violation of provisions of the Constitution itself.


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