Slavery and the Constitution: Explorations
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TEXAS TECH LAW REVIEW VOLUME 20 1989 NUMBER 3 SLAVERY AND THE CONSTITUTION: EXPLORATIONS by George Anastaplo* It is proper for more reasons than the most obvious one that I should open this series [of lectures on natural right and history] by quoting a passage from the Declaration of Independ- ence. The passage has frequently been quoted, but, by its weight and its elevation, it is made immune to the degrading effects of the excessive familiarity which breeds contempt and of misuse which breeds disgust. "We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." The nation dedi- cated to this proposition has now become, no doubt partly as a consequence of this dedication, the most powerful and prosper- ous of the nations of the earth. Does this nation in its maturity still cherish the faith in which it was conceived and raised? Does it still hold those "truths to be self-evident"? -Leo Strauss' CONTENTS INTRODUCTION ................................................... 679 I. A PRELIMINARY CONVERSATION ............................. 681 © Copyright 1989 by George Anastaplo. All rights reserved. The editors have complied with the author's stylistic preferences in this article.-Ed. * Professor of Law, Loyola University of Chicago School of Law; Professor Emeritus of Political Science and of Philosophy, Rosary College; and Lecturer in the Liberal Arts, The University of Chicago; A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago. 1. L. STRAuss, NATURAL RIGHT AND HtsToRY 1 (1953). See, on the Declaration of Independ- TEXAS TECH LAW REVIEW [VOl. 20:677 II. ARISTOTLE ON SLAVERY ....................................... 691 III. SLAVERY AND THE FEDERAL CONVENTION OF 1787 ..... 696 IV. SLAVERY IN THE TERRITORIES ............................... 717 ence, Anastaplo, The Declaration of Independence, 9 ST. Louis U.L.J. 390 (1965); G. Anastaplo, Political Philosophy of the Constitution, in 3 ENCYCLOPEDIA oF TE AMElucAN CONSTITUTION 1413 (L. Levy, K. Karst and D. Mahoney eds. 1986); G. ANAsTAPLo, THE CONSTrrTUON OF 1787: A COM'ENARY 2-3, 21-22, 239-44 (1989) [hereinafter CoMMENTARY]. See, on Leo Strauss, G. ANASTAPLO, THE ARTIST AS THINKER: FROM SHAKESPEARE TO JoYcE 249 (1983) [hereinafter ARTIST]. Additional discussions of slavery and American race relations may be found in the following publications by me: 1) THE CONSTTuTnONALIST: NoTEs ON THE FIRST AMENDMENT 239-53 (1971) [hereinafter CoNSTi- TIJTIONAIIST]. 2) Essay No. IV, Natural Right and the American Lawyer, Essay No. V, Liberty and Equality, Essay No. VI, Law and Morality, Essay No. XV, Race, Law, and Civilization, and Essay No. XVI, Citizen and Human Being: Thoreau, Socrates, and Civil Disobedience, in HUMAN BEING AN CTIZEN: ESSAYS ON VuTuE, FREEDOm AND ma COMMON GOOD (1975) [hereinafter EssAYs]. 3) American Constitutionalism and the Virtue of Prudence: Philadelphia, Paris, Washington, Gettysburg, in ABRAHM LINCOLN, THE GmrrysauRo ADDRESS AND AMERICAN CONSTUTONAISM 77 (L. P. S. de Alvarez ed. 1976) [hereinafter American Constitutionalism and the Virtue of Prudence]. 4) Mr. Justice Black, His Generous Common Sense and the Bar Admission Cases, 9 Sw. U.L. REv. 977, 1042-46 (1977). 5) Book Review, 23 MOD. AGE 314 (1979) (reviewing books by Harry V. Jaffa and Garry Wills). 6) Abraham Lincoln's Emancipation Proclamation, in CONSTITToINAL GOvERNMENT IN AMEmCA: Essays and Proceedings from Southwestern University Law Review's First West Coast Conference on Constitutional Law 421 (R. Collins ed. 1980). 7) THE ARTsr AS THINKER: FROM SHAKEsPEARE TO JOYCE, Chapter X, Appendix B (1983). 8) Book Review, 27 MoD. AGE 365 (1983) (reviewing W. CROSsKEY & W. JEFFREY, JR., III, POumCs AN m CONSTuTION IN TE HISTORY OF mrE UNITED STATES: TBE PoLrmcAL BACKGROUND OF Tm FEDERAL CONVENTION (1980). 9) Book Review, 99 EIcs 655 (1989) (reviewing M. WirrE, Ptnt-soisv, "Tim FEDERAur," AND mHECoNSTITUTION (1987)). 10) Mr. Crosskey, the American Constitution, and the Natures of Things, 15 Loy. U. Cm. L.J. 181 (1984) [hereinafter Mr. Cromkey]. 11) How to Read the Constitution of the United States, 17 Loy. U. Cim. L.J. 1 (1985) [hereinafter" How to Read]. 12) The Northwest Ordinance of 1787: Illinois' First Constitution, 75 ILL. B.J. 122, 123 (1986). 13) Seven Questions for Professor Jaffa, 10 U. PuGEr SouND L. REv. 507 (1987) [hereinafter Seven Questions]. 14) THm UNrrED STATES CONSTITUTION OF 1787: A CoMMENTARY, 306 n.9 (1989). The appendices to this Commentary include a dozen constitutional documents ranging from the Deiaiation of Independence through the Gettysburg Address. My Commentary in its law journal form includes a selected bibliography in which there are recorded corrections for various of the items both listed here and cited in tie notes below. 18 LoY. U. Cm. L.J. 15, 225 (1986). The reader is urged, as with my other publications, to begin by reading the text of this article without reference to its notes, except for the note at the beginning of each part which indicates the occasion for which that part was originally prepared. 1989l SLAVERY AND THE CONSTITUTION V. CALHOUN AND SLAVERY ...................................... 722 VI. DRED SCOTT AND THE LINCOLN-DOUGLAS DEBATES .... 732 VII. SECESSION AND THE RULE OF LAW ......................... 74 VIII. NEITHER BiACK NOR WHITE: THE NEGRO IN AMERICA ...................... , ................................... 766 IX. DEMOCRACY AND RACIAL DIVERSITY ....................... 780 CONCLUSION ...................................................... 783 INTRODUCTION 1. It might be wondered why anyone should bother today, at least in the Western world, to study the problem of slavery since slavery as an institution has become "unthinkable." Americans can hope to learn, from such a study, about critical opinions and practices which have helped shape their political history and their constitutional doctrines. Constitutionalism itself, and the rule of law, can be illuminated by periodic reconsiderations of how American statesmen and the American people have dealt from time to time with slavery, its presuppositions, and its after- math. The virtually universal repudiation in oui tin of slavery (es- pecially slavery keyed to racial differences) is drarhatically evident in the news of the day: systematic denials of equality tend to arouse fiercer opposition in the modern world than do systematic suppres- sions of liberty. Consider, for example, the repeated efforts to exclude the kepublic of South Africa from the community of nationsi but not the Soviet Union. There is no doubt but that the South African government practices out-and-out racial discrimination; perhaps coming as close as a Western country can openly come at this time to slavery on a grand scale. Still, it can be argued, even the second-class and third- class citizens of South Africa enjoy in tranquil years considerably more civil liberty (for example, freedom of speech) than most citizens in the pre-glasnost Soviet Union ever have. This, however, is generally taken to be an irrelevant distinction for anyone determining the responses to be made by governments and others to South Africa and the Soviet Union today. Of course, if South Africa were as powerful militarily as the Soviet Union, much more caution would have to be exercised in dealing with its TEXAS TECH LAW REVIEW [Vol. 20:677 government. But deep-seated resentment of its racial policies would probably continue. Not only does slavery pose the most radical challenge to both the contemporary dedication to equality and the pervasive hostility to racial discrimination, but it can also provide the point of depar- ture for a most instructive examination of enduring principles and their application to issues of the day. Thus, I observe, in the concluding section of the third part of this article: One great advantage for Americans of the slavery issue has been that it has obliged them, through many of the formative years of the Republic (and perhaps down to this day)-it has obliged and permitted us to be always aware of the relation between law and morality as well as the limits of any doctrinaire morality. Proper reflection upon the dilemmas that decent people confront, because of their circumstances, can help us curb self-righteous- ness, something which can be crippling and even suicidal. We should be alert to the sorts of things one should take account of when one tries to make the best of a bad situation-and this applies to matters as diverse, and yet as similar, as the contro- versies today about abortion and about nuclear and biological weapons. My readers will see how I have attempted, in discussions developed on nine separate occasions over a quarter of a century, to apply what I believe to be enduring principles to the slavery question and related issues as they have manifested themselves in ancient times and in recent centuries, in this country and abroad. Ii. Each of the nine discussions used in this article was fashioned with the interests and needs of its particular audience in mind. (This partly accounts for whatever repetitions may be found in the pages that follow.) One is not likely to be useful if one speaks altogether abstractly, or without regard for circumstances, about practical matters. The title provided for each part of this article indicates the aspect of that part which is being emphasized, at least for organi- zational purposes, in this context. More often than not,