Slavery and the Constitutional Convention 2013 Walter Berns Constitution Day Lecture “The Founders were not all-seeing or all-wise. Both histo- ry and their constitutional order developed in ways they did not foresee and for which they had not provided well. Slavery and Yet we ought not to be so harshly dismissive of them. Because the vision of racial equality . is, after all, a vision the Constitutional built on their commitment to, and their construction of, a natural rights republic—a republic where all men are held Convention to be created equal and endowed by their creator with cer- tain unalienable rights.” R —Michael P. Zuckert 2013 Walter Berns This year marks the 150th anniversary of the issuance of the Emancipation Constitution Day Lecture Proclamation and the 50th anniversary of the March on Washington, semi- nal events in America’s effort to deal with and overcome the legacy of slavery. Key to understanding that legacy is the place of slavery at the 1787 Constitutional Convention and thence in the US Constitution.. In a lecture marking the 226th anniversary of the signing of the US Constitution on September 17, 1787, Michael P. Zuckert (University of Notre Dame) critically examined the leading “pro-” and “anti-slavery” inter- pretations of the Constitutional Convention and offered an alternative analysis tied to a more accurate and less anachronistic reading of the prin- ciples and politics of the founding era. Zuckert’s lecture was the second in a series named for distinguished AEI scholar Walter Berns. REMARKS BY MICHAEL P. ZUCKERT Slavery and the Constitutional Convention 2013 Walter Berns Constitution Day Lecture REMARKS BY MICHAEL P. ZUCKERT The AEI Press Publisher for the American Enterprise Institute WASHINGTON, D.C. The Walter Berns Constitution Day Lecture Series A scholar of political philosophy and constitutional law, Walter Berns has written extensively on issues of American government and its Founding principles. He is the author of 10 volumes and has published widely in professional and popular journals and America’s leading newspapers. He is the John M. Olin University Professor Emeritus at Georgetown University and served as a resident scholar at AEI. He has taught at Louisiana State University, Yale University, Cornell University, Colgate University, and the University of Toronto. He earned his master’s and doctorate degrees in political science at the University of Chicago. Berns served on the National Council on the Humanities from 1982 to 1988 and on the Council of Scholars in the Library of Congress from 1981 to 1985. He was also a delegate to the United Nations Commission on Human Rights. He was awarded the National Humanities Medal in 2005. In September 2011, AEI president Arthur Brooks announced that henceforth the Program on American Citizenship’s annual Con- stitution Day celebration would be named in honor of Walter Berns in appreciation of his scholarly legacy in this field and his many years of contributing to the work of AEI. 1 Slavery and the Constitutional Convention Michael P. Zuckert September 17, 2013 (The following text is a transcript of Professor Zuckert’s remarks.) It is an immense honor to me to appear here at AEI to deliver the Walter Berns Constitution Day Lecture. This event also has great personal meaning for me because Walter Berns was my very first political science professor—more years ago than I think either he or I would care to count. He co-taught a course, Introduction to American Government, with a very newly minted PhD named Theodore Lowi. If any of you are familiar with the work and thought of these two men, you’ll have some idea of what kind of experience it was to sit through a class taught by these two: it was exhilarating, but it was also in equal measure confusing—at least for a neophyte political scientist such as I was. Walter Berns was also my first teacher in constitutional law, but in that subject he had a very capacious understanding of what ought to be covered. We spent a fair amount of time that semester reading James Madison’s notes on the Constitutional Convention because Walter seemed to have this very quaint idea that constitutional law did have something to do with the Constitution. We also read parts of John Locke’s Second Treatise, which he also thought had some- thing to do with the Constitution. If it hadn’t been for that course, I wouldn’t be standing here today. I might be on Wall Street or in a law firm somewhere because that was my original plan. So Walter 3 4 SLAVERY AND THE CONSTITUTIONAL CONVENTION Berns was both an inspiring and a life-changing presence for me. But he was not always an easy person. My first personal contact with him came at the end of my soph- omore year when I, and all other Cornellians of that age, had to declare our major, and as a part of declaring our major, we had to take a little card and have it signed by somebody who we had selected to be our adviser. I chose Walter. And, with a good deal of trepidation, I went to his office. Trepidation because this was the first time I had ever been in a faculty office at Cornell, so this was a new experience for me. Everything went very well—until I got to the office. I had just taken the only course I had had with him at that point, that very large introductory course, so he didn’t really know who I was and I had to explain why I was there. I explained, “I’m declaring my major, I would like you to be my adviser.” He looked me over and he asked, “Why me?” This seemed like a completely unanswerable question; no answer I could come up with would be sufficient to answer this question. I stammered out something—I have no idea what it was, but he did sign the card. With great relief, I left his office, and I got halfway down the stairs and realized I had left this card in his office. I had to go back and get the card, and it is at that time I started to think, “Maybe another adviser would do better.” In any case, I knocked on the door again, knowing that I was looking like an idiot, but Walter very kindly overlooked, or likely forgot, this less than auspicious beginning to our relationship. In any case, I still remember many things that I’ve heard or read by Walter, but what sits most in my memory is that “Why me?” In any case, I am hoping that he did not say something similar when he heard that I was giving the Walter Berns lecture: “Why him?” Now you probably did not notice this, but today we are cele- brating the 226th anniversary of the day the delegates to the Con- stitutional Convention met for the last time and signed the document they had drafted. One of the reasons you did not notice this is that we don’t usually notice 226th anniversaries of anything. This anniversary is nowhere near as visible as was the 200th anniversary of the Constitutional Convention in 1987. Chief Justice MICHAEL P. ZUCKERT 5 [Warren E.] Burger, as you may remember, was appointed head of something called the US Commission on the Bicentennial, which was put in place in order to encourage events related to the bicen- tennial. One of the things that the commission did was to issue offi- cial seals of approval for events they felt were suitable for celebrating the bicentennial. One activity of that year, which I do not believe got the bicenten- nial commission seal of approval, was a talk given by Supreme Court Justice Thurgood Marshall at a hotbed of constitutional studies—the San Francisco Patent and Trademark Law Association’s annual sem- inar, which was held in Maui, Hawaii, of all places. Burger, who was one of the most conservative justices on the court, and Marshall, who was one of the most liberal justices on the court, had clashed many times before this, but this time their dis- agreement really caught the attention of the entire thinking public. Rather than joining in the celebration of the Founders that Burger was sponsoring, Justice Marshall announced right off in his talk in Hawaii that he did not “find the wisdom, foresight, and sense of jus- tice exhibited by the Framers particularly profound.”1 The issue that led Justice Marshall to his dissent, of course, was slavery. While many people thought that it was a little bit indelicate for Justice Marshall to raise this awkward question at a time of great national celebration of the Constitution, nonetheless the issue of slavery and the Constitution had been much on the minds of histo- rians, constitutional scholars, and many thoughtful citizens for quite a long time by then. And among the professionals, it seems to me, the ruminations about slavery had produced two factions—or schools of thought—about slavery and the Constitution: one some- times known as “Neo-Lincolnian” and the other sometimes known as “Neo-Garrisonian.” The latter is named for William Lloyd Garri- son, the great abolitionist, activist, and thinker who had condemned the Constitution as a “covenant with death” and an “agreement with hell” because of its support for slavery. The other group is, of course, named for Abraham Lincoln, who had rather a different view about the Constitution. This is not the place to relate in any kind of detail the character 6 SLAVERY AND THE CONSTITUTIONAL CONVENTION of the debates between these different groups, but a brief summary will be useful.