American Enterprise Institute

Slavery, Equality, and the American Revolution

But What About Slavery? Notes

  1. See Randy E. Barnett, “The Declaration of Independence and the American Theory of Government: ‘First Come Rights, and Then Comes Government,’” Harvard Journal of Law & Public Policy 42, no. 1 (2019): 23–28, https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2019/02/Barnett-FINAL.pdf.
  2. See, for example, Robert G. Parkinson, “You Can’t Tell the Story of 1776 Without Talking About Race and Slavery,” Time, July 4, 2021, https://time.com/6077468/united-states-1776-racism-slavery/. (“Slavery and arguments about race were not only at the heart of the American founding; it was what united the states in the first place.”)
  3. Dred Scott v. Sandford, 60 US 393, 407 (1857).
  4. Dred Scott, 60 US at 407.
  5. For an overview of the theory of originalism and its development since the 1980s, see Randy E. Barnett and Evan Bernick, “The Letter and the Spirit: A Unified Theory of Originalism,” The Georgetown Law Journal 107, no. 1 (2018): 1–55, https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2018/12/The-Letter-and-the-Spirit-1.pdf.
  6. Dred Scott, 60 US at 410.
  7. Dred Scott, 60 US at 410.
  8. Ironically, when today’s critics echo Taney’s claim, they are adopting original intent originalism, a version of originalism that was widely criticized by non-originalists and has been abandoned by most originalists. See Barnett and Bernick, “The Letter and the Spirit,” 9–10, 45–46.
  9. Dred Scott, 60 US at 421.
  10. Dred Scott, 60 US at 537 (McLean, J., dissenting).
  11. Dred Scott, 60 US at 574 (Curtis, J., dissenting).
  12. Dred Scott, 60 US at 574.
  13. Dred Scott, 60 US at 574.
  14. Dred Scott, 60 US at 574–75.
  15. Dred Scott, 60 US at 575. The definition of American citizenship was left largely to individual states until the Civil Rights Act of 1866 and the passage of the 14th Amendment. See Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (W. W. Norton, 2019), 3, 63, 70.
  16. Worthington Chauncey Ford, ed., Journals of the Continental Congress, 1774–1789, vol. 5, 1776: June 5–October 8 (Government Printing Office, 1906), 429, quoted in Pauline Maier, American Scripture: Making the Declaration of Independence (Alfred A. Knopf, 1997), 126.
  17. John Hancock to Certain States, July 6, 1776, quoted in Maier, American Scripture.
  18. Maier, American Scripture, 43, 97–99.
  19. Maier, American Scripture, 103.
  20. Maier, American Scripture, 125–26.
  21. Virginia Declaration of Rights, The Pennsylvania Gazette, June 12, 1776, quoted in Maier, American Scripture, 126–27.
  22. Virginia Declaration of Rights, in Maier, American Scripture, 127.
  23. Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation’s Founding (Harvard University Press, 2018), 25.
  24. Vt. Const. of 1777, ch. I, art. 1.
  25. Wilentz, No Property in Man, 30.
  26. Northwest Ordinance of 1787, art. VI.
  27. Northwest Ordinance of 1787, art. VI. True, in 1790, Congress enacted the Southwest Ordinance to govern the territories ceded to the United States by North Carolina, from which the states of Kentucky and Tennessee were formed in 1792 and 1796, respectively. In that law, Congress obliquely adopted the provision of the North Carolina cession act that debarred Congress from abolishing slavery in states formed from this territory. But this was the preservation of the status quo with respect to that land, not an extension of slavery into new areas. That there were many in the South who ardently wished to preserve their unjust dominion (while often conceding its injustice) is undeniable. The issue here is whether the Declaration’s original meaning was inherently antislavery, a reading the Northwest Ordinance supports.
  28. Dred Scott, 60 US at 425 (“The only two provisions which point to them and include them, treat them as property”), 451 (“The right of property in a slave is distinctly and expressly affirmed in the Constitution”). (Emphasis added.)
  29. Northwest Ordinance of 1787, art. VI. See also Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 51–53.
  30. Wilentz, No Property in Man, 105.
  31. Debates in the Federal Convention of 1787 by James Madison, a Member, ed. Gordon Lloyd (Ashbrook Center, 2014), 454.
  32. Wilentz, No Property in Man, 77.
  33. Wilentz, No Property in Man, 110–12; and Debates in the Federal Convention of 1787 by James Madison, a Member, 542. The latter meaning of “legal” reflected the dominance of natural law thinking at the time. The term “law” was equivocal as it was commonly used then, as today, to refer to a statute or legislative “act,” as distinct from a morally binding law.
  34. Salmon Chase, “Union and Freedom, Without Compromise,” speech, US Senate, Washington, DC, March 26, 1850.
  35. Charles Sumner, Freedom National; Slavery Sectional (Washington, DC, 1852), 20.
  36. US Const. art. I, § 8, cl. 3.
  37. Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution [. . .], 2nd ed. (Washington, DC, 1863), 3:464. See Randy E. Barnett, “The Original Meaning of the Commerce Clause,” The University of Chicago Law Review 68, no. 1 (2001): 143, https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5074&context=uclrev.
  38. 1 Stat. 347.
  39. Chase, “Union and Freedom, Without Compromise.” Few asserted this interpretation of the text in the 1800s, however, because of the implications of such a reading for preserving the union, which is not relevant to its original meaning.
  40. See Prigg v. Pennsylvania, 41 US 539 (1842).
  41. US Const. art. IV, § 3, cl. 2.
  42. US Const. art. I, § 8, cl. 17.
  43. See Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, Journal of Legal Analysis 3, no. 1 (2011): 165, 179–82, https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1475&context=facpub.
  44. H. L. Pinckney, Report of the Select Committee upon the Subject of Slavery in the District of Columbia [. . .] (Washington, DC, 1836), 10.
  45. Dred Scott, 60 US at 451.
  46. Dred Scott, 60 US at 537 (McLean, J., dissenting); and Wilentz, No Property in Man, 2. As the Constitution’s wordsmith, Morris may deserve more credit for this fastidiousness than Madison.
  47. University of California, Santa Barbara, American Presidency Project, “Republican Party Platform of 1860,” https://www.presidency.ucsb.edu/node/273296.
  48. See James Oakes, Freedom National: The Destruction of Slavery in the United States, 1861–1865 (W. W. Norton, 2014).
  49. Wilentz, No Property in Man, 12, 274n21.
  50. Frederick Douglass, “The American Constitution and the Slave: An Address Delivered in Glasgow, Scotland, on 26 March 1860,” in The Frederick Douglass Papers, Speeches, Debates, and Interviews, ed. John W. Blassingame, vol. 3, 1855–63 (Yale University Press, 1985), 365.
  51. Douglass, “The American Constitution and the Slave,” 365.
  52. See Lysander Spooner, The Unconstitutionality of Slavery (Boston, 1845). Spooner was responding to Wendell Phillips, ed., The Constitution: a Pro-Slavery Compact: Or, Extracts from the Madison Papers, Etc. (Boston, 1844). After a lengthy published reply by Phillips, Spooner added a Part Second to his book in which he expanded on his interpretative methodology. See Lysander Spooner, The Unconstitutionality of Slavery, rev. ed. (Boston, 1860), in The Collected Works of Lysander Spooner, ed. Charles Shively, vol. 4, Anti-Slavery Writings (M & S Press, 1971), 218. (“It is the original meaning of the constitution itself that we are now seeking for.”) (Emphasis added.)
  53. Douglass, “The American Constitution and the Slave,” 366.