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.

Civil Rights

Democracies enable people to best express their differences, dissension and protest, through a system of political checks and balances, and a basic commitment to freedom and justice for all. This is why the struggle for democracy is at the same time a fight for the extension of civil rights.

Civil rights, as part of the social contract, protect the entitlements and personal liberties of those who fall within the legal jurisdiction of a country, regardless of ethnic, sexual, social, religious or other attributes unrelated to individual capacity. They limit the action of the State within the private and public spheres but can only be secured by the laws enacted by the sovereign state itself.

There are more civil rights than fundamental rights because the State and the judicial body overseeing the correct implementation of the principles contained in a country’s constitution have the power to expand the purview of fundamental rights, sometimes in response to the mobilization of civil rights movements, which seek to sensitize the public about existing discriminations and misapplications of the law.

Thus, for instance, today all American citizens are endowed with the right to vote, which was not granted by either the original Constitution or the Bill of Rights. Also, freedom from racial, gender, or physical discrimination was not contemplated by the Founding Fathers. The legal protection of these civil liberties was sanctioned by the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) “civil war” amendments, adopted during the Reconstruction period. They abolished slavery, guaranteed the due process of law and equal protection of the laws, and forbade racial discrimination as far as voting rights were concerned.

However, one must also bear in mind that the cultural climate of a country exerts a powerful pressure on the judiciary and on the legislative power. In the United States, as elsewhere, the doctrine, advocated among others by Scottish Enlightenment philosophers, that human beings are driven by their instincts and self-interest, apparently dissipated most of the lingering doubts about the contradictions of the modernity project, which failed to deliver on its promise of bounty and unrestricted opportunities. At the same time, a rather cynical distrust in human nature infiltrated the debate on the Constitution, because it was generally presumed that the masses were ignorant, selfish, and did not posses the required natural virtues. James Madison’s illuminating passage in Federalist No. 10, 1787, which encapsulates the inherent tension between liberty and equality and the fundamental class-bias of the American Constitution, clarified that the first object of government would be “the protection of different and unequal faculties of acquiring property” and the securing of this property.

It followed that in the newly independent states only white male property owners, namely those who could be trusted as basically virtuous, were allowed to cast their vote and make their voice heard on crucial issues. Another logical outcome was that social and economic rights like those described by F.D. Roosevelt in his State of the Union address of January 11, 1944, would not be pursued with vigor.

It is also noteworthy that Thomas Jefferson and John Adams maintained that the rise of a natural aristocracy of men, an aristocracy of virtue and talent that would select the best political leadership, was hindered by the existence of an artificial aristocracy of men. Yet this line of reasoning could also be used to sanction an elitist understanding of human nature and human affairs. An entrenched sense of pre-eminence would translate into a propensity to turn a blind eye to social, occupational and economic disparities which undermined those very same fundamental rights that the Founding Fathers themselves so forcefully advocated.

Accordingly, if one interprets the term “equality” rather narrowly, as equality before the law, and regards the principles and laws of market economy as the guiding hand of social and economic growth, the resulting social contract will define the promotion of equal opportunities and the reality of wide disparities as compatible. As German-British sociologist Ralf Dahrendorf discerningly put it, “all men are equal before the law but they are no longer equal after it”. One of the long-term consequences was the early twenty-century spate of mental testing, which classified people according to ostensibly objective means of assessment and dramatically narrowed the educational and employment opportunities of scores of new American citizens.

The notable omission of political equality and social justice in the drafting of the Constitution cannot be explained simply in terms of class relations. The notion of cosmic retribution was another factor at play. It was held that a correlation existed, between virtue and happiness, vice and misery and that, because there were no insurmountable barriers to hinder upward social mobility, individuals could rose just as far as their skills and determination would enable them to. In other words, wealth was always earned and, with few exceptions, the poor deserved their station in life, owing to chronic, and possibly inheritable, flaws in their character, leading them to moral failing and economic destitution. Thus, following Locke, citizens without property were not as fully entitled to constitutional rights because it was doubtful that they would live up to the moral and rational demands of modern society.

Back in the eighteenth and nineteenth centuries, this rationale urged American citizens to pursue the colonial expansion towards the West and stake claims on Indian land, for Native Americans were thought to be an inferior race incapable of fulfilling the moral mission of harnessing natural resources. As remarked by Justice Jackson in Northwestern Bands of Shoshone Indians v. United States 324 U.S. 335 (1945), “acquisitiveness, which develops a law of real property, is an accomplishment only of the ‘civilized’.”

But if Indians were inferior to Whites, they could not be invested with the same legal rights. These were indeed the conclusions of the Supreme Court in the landmark cases Johnson v. McIntosh 21 U.S. (8 Wheat.) 543 (1823), Cherokee Nation v. the State of Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832), known as the Marshall Trilogy, after John Marshall, at that time chief justice of the Supreme Court, which laid out the fundamental principles for current judicial decisions on disputes between Indian tribes and the federal government. They formalized the imperialist and fictional rule of law behind the Doctrine of Discovery, whereby Native Americans, as “domestic dependent nations,” lost the sovereignty of the land in which they had lived “from time immemorial” and could only exercise a right of occupancy, under the American “protection and pupilage”. Europeans had “discovered” the land, and therefore they owned it.

On the other hand, assimilated Indians, who lived a “civilized life” and paid the taxes, were denied citizenship with the Supreme Court ruling in Elk v. Wilkins 112 U.S. 94 (1884), despite the Fourteenth Amendment. Eventually, forty years later, the Indian Citizenship Act of 1924 extended US citizenship to all Native Americans, leaving unresolved the question of whether this provision, which applies to a self-governing people and involves an uncalled-for collective naturalization, is constitutional. The fatal incongruence of the Act, which granted the US citizenship to individuals who were also citizens of an Indian nation, derived from the tension between two divergent aspirations: one the one hand the government’s intention to reorganize the Indian communal land through allotment and to encourage them to embrace the American way of life, and on the other hand the unwillingness of most Indians to be assimilated.

It would be another four decades before, in 1968, the Indian Civil Rights Act extended to individuals under the jurisdiction of Indian tribal governments the protections of the Bill of Rights and imposed some of the US legal standards to the Indian nations.