Slavery and the Constitution

Chattel slavery is the extension of market relations to the human person, as a marketable property and human commodity (res commerciabilis) or legal tender, outside the domain of mutual obligation.

In 1550, Spanish emperor Charles V called a halt to military operations in the New World, until the status of Native Americans, together with the morality and legality of the Spanish conquest, had been thoroughly debated. A group of theologians and jurists was convoked in Valladolid, to listen to the arguments of Bartolomé de Las Casas and Juan Ginés de Sepúlveda and settle this question once and for all.

The bull “Sublimis Deus”, issued in 1537 by Pope Paul III, had already clarified the Holy See’s official position on the subject. The Pope condemned slavery and the portrayal of Indians as “dumb brutes created for our service”, incapable of exercising self-government, free will, and rational thinking, and therefore of receiving the message of Christ. Las Casas, elaborating on this bull and on the writings of Francisco de Vitoria, a Dominican professor at the prestigious university of Salamanca, decried the barbarity of Spaniards by contrasting it with the meekness, humbleness and good-heartedness of the Indians. Sustained by an unswerving faith in the essential unity of humankind and by his conviction that a commitment to global justice was a moral imperative, he argued that Indians were fully capable of governing themselves and were entitled to certain basic rights, regardless of the nature of their practices and beliefs, which should anyhow be understood from an indigenous point of view.

Sepúlveda, who knew very little of the Spanish colonial subjects, drew on the doctrine of natural law and on pragmatic realism to marshal most of the arguments which would be later deployed by American anti-abolitionists. He explained that, given their innate physical and intellectual inferiority, Indians should be assimilated to Aristotle’s “natural slaves.” In consequence of their being ruled by passions rather than reason, Indians were born to be slave. As men ruled over women, and adults ruled over children, so inferior races should be subordinated to the will of superior races. This allowed for the enslavement of indigenous people and Africans.

Puritan settlers in North America took the same stance as Sepúlveda, and resorted to natural laws to validate the claim that religious conversion could not change the legal status of African slaves or Indians. Their status would instead be anchored to biological, and thus inalterable, attributes, which justified hereditary slavery and perpetual bondage for African-Americans and Native Americans. Because their status was equivalent to that of domestic animals or infants, slaves enjoyed no legal protection: only their commercial value shielded them from the structural violence of a society that regarded them as less than human. Slavery was described as a necessary evil, not the result of greed, callousness, and “human parasitism.”

In 1700, Indians accounted for one fourth of all South Carolina’s slaves and in 1790, when the Naturalization Act was introduced, which restricted American citizenship to “free white persons,” nearly one third of the people living in the American South were black slaves. The paradox of a society fighting for freedom and for pre-social individual rights and granting juridical personality to corporations, ships and states, but at the same time tolerating that 20 percent of the population was subject to chattel slavery, is epitomized by John Adams’ protest against the English yoke, in 1765: “We won’t be their Negroes.”

Even though they may have expressed doubts about the morality of slave ownership, George Washington, James Madison, and Thomas Jefferson profited from it and were evidently prepared to live with it. When southern delegates refused to support a government and a Constitution hostile to their economic and political interests, northern delegates sought all sorts of compromises to avoid conflict. Abolitionist William Lloyd Garrison called the final draft of the Constitution “a covenant with death, and an agreement with hell.” Indeed, consensus was bought at the highest price: the constitutional sanctioning of slavery, an institution irreconcilable with the libertarian spirit of the Constitution, but not with its protection and promotion of private property and enterprise.

Also, the “Fugitive slave clause” of Article IV of the Constitution prevented fugitive slaves who had reached an abolitionist state from being freed. What is more, the southern delegates managed to persuade their northern equivalents to include slaves in the determination of the apportionment of the members of the House of Representatives. Irrespective of their status as property, each slave would be counted as three-fifths of a free man, thus greatly augmenting the political power of the Southern States. As a result, twelve out of the first sixteenth American presidents were Southern slaveholders although, by 1804, slavery had been substantially abolished in the Northern states, where an inclusive civic nationalism had taken root.

Thus, for all intents and purposes, it may be said that the American Constitution protected the peculiar institution and the Southern caste society until the outbreak of the Civil War. In Dred Scott v. Sandford 60 U.S. (19 How.) 393 (1857), Roger Brooke Taney (1777-1864), Chief Justice from 1836 until his death in 1864, a Catholic and a former slave-owner, played a significant role in furthering the sectional interests of those who interpreted the meaning of the Constitution as precluding the federal government from applying restrictions to the citizens’ right to property. This would include the property of slaves, which was protected by the due process clause of the Fifth Amendment. Echoing Sepulveda’s arguments, he maintained that, in 1787, blacks were not expected to become citizens and to exercise the associated rights, for they were considered as “a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.” This infamous, though formally and historically not incongruous, decision, which foreshadowed a future Supreme Court ruling nullifying the abolition of slavery in the North, strengthened the resolve of abolitionists. Eight years and over 600,000 casualties afterwards, institutional racial slavery and involuntary servitude officially ended with the passage of the Thirteenth Amendment.

Juan Ginés de Sepúlveda

Sixteenth-century Spanish humanist theologian. He pursued theological, philosophical and juridical studies in Córdoba, Alcalá de Henares and Bologna, where he developed a keen interest in the philosophy of Aristotle.

Appointed royal chaplain, court historiographer, and tutor of Philip II by the Spanish emperor Charles V in the mid-1530s, his reactionary views drew him into numerous disputations, in which he sought to safeguard orthodoxy and stifle ecclesiastic reforms.

Besides those of Erasmus and Luther, he most famously attacked the progressive and humanitarian views of the Dominican friar Bartolomé de las Casas (1474–1566), the most outspoken advocate of indigenous rights in the Americas. Opposed to the so-called New Laws (1542), which banned slavery and regulated the encomienda, a neo-feudal institution that granted free Indian labour to Spanish landowners, Sepúlveda persuaded the emperor to revoke them. Las Casas, one of the inspirers of the New Laws, immediately sailed back to Spain to repel the assault of those, among the Spanish intelligentsia, who sided with the Conquistadors and justified the killing and oppression of the Indians.

Sepúlveda was one of them. A self-appointed champion of the interests of slavers and landowners, he had authored a treatise entitled “Concerning the Just Cause of the War Against the Indians” (1547) to provide solid philosophical underpinnings for Spanish imperialism and just war theory. In doing so, he treaded dangerously close to heresy. His heterodox outlook, tinged with naturalistic paganism and militaristic chauvinism, alienated him from the most significant academic circles of Spain. Even so, thanks to his impressive scholarship and to the support of economic potentates, he retained much of his influence.

These two intellectual giants were thus set on a collision course. In 1550, Charles V called a halt to military operations in the New World, until the status of Native Americans, together with the morality and legality of the Spanish conquest, had been thoroughly debated. A group of theologians and jurists (junta) was convoked in Valladolid, to listen to the arguments of Las Casas and Sepúlveda and settle this question once and for all. This dispute is of paramount importance because it constituted the first major articulate attempt on the part of Europeans to understand and define human variability and cultural diversity, and marked the crucial universalist/racialist bifurcation of anthropological philosophy at the dawn of modernity.

The bull “Sublimis Deus”, issued in 1537 by Pope Paul III, had already clarified the Holy See’s official position on the subject. The Pope condemned slavery and the portrayal of Indians as “dumb brutes created for our service”, incapable of exercising self-government, free will, and rational thinking, and therefore of receiving the message of Christ.

Las Casas, elaborating on this bull and on the writings of Francisco de Victoria, a Dominican professor at the prestigious university of Salamanca, as well as one of the precursors of international law and human rights theory, decried the barbarity of Spaniards by contrasting it with the meekness, humbleness and good-heartedness of the Indians. Sustained by an unswerving faith in the essential unity of humankind and by his conviction that a commitment to global justice was a moral imperative, he argued that Indians were fully capable of governing themselves and were entitled to certain basic rights, regardless of the nature of their practices and beliefs, which should anyhow be understood from an indigenous point of view.

While Las Casas, who had spent most of his life in the colonies, sided with the poor and disenfranchised, Sepúlveda, who knew very little of the Spanish colonial subjects, drew on the doctrine of natural law and on pragmatic realism to marshal most of the arguments which would be later deployed by anti-abolitionists, segregationists and imperialists. He explained that, for all intents and purposes, given their innate physical and intellectual inferiority, Indians should be assimilated to Aristotle’s “natural slaves.” For Sepúlveda, Christian blood was the only vessel of reason, therefore Indians were naturally impervious to conversion. In consequence of their being ruled by passions rather than reason, Indians were actually born to be slave and should actually be grateful that, in spite of their sinfulness, barbarism, licentiousness, and relative indifference to the institute of private property, their new masters acted as God’s instrument of redemption and regeneration. Finally, as men ruled over women, and adults ruled over children, so inferior races should be subordinated to the will of superior races. This line of reasoning clearly allowed for the virtual enslavement of indigenous people, and authorised the violent reprisals whenever the Indians refused to accept Spanish rules.

Officially, neither Las Casas nor Sepúlveda won the dispute, but the monarchy made common cause with the Church against the encomenderos, for there was a growing concern that the power of colonial landowners was rising disproportionately, and that their unwillingness to re-invest their considerable revenues was harming the Spanish economy. It is also fair to say that the Crown was motivated by sincere moral qualms.

With the benefit of the hindsight, we now know that Sepúlveda’s theses were both modern – as when he implied that the spheres of politics and religion should be kept separate and that law should reflect the reality of actual human relationships (legal realism) – and anachronistic, given that he relied on the notion of a natural causation of society and politics that was already obsolete at the time. Consequently, his propositions could not be reconciled with Spanish legal thinking, which had already taken a clear anti-slavery position, and consistently refused to sanction the exploitation of American natives under the guise of outmoded and undignified medieval contracts.

Nevertheless, exploitation and abuse continued, in Potosì as in Mexico, because the cold logic of pragmatism and greed prevailed. Only those natives who learned to avail themselves of colonial laws and acted as their own attorneys could successfully fight their exploiters.