The Constitution Is Not Illegitimate Because Its Framers Held Slaves

There is a moral argument against the Constitution that sounds unanswerable, and the people who make it know it. Many of the men who wrote it held human beings as property. The document protected their power to do so. Therefore, the argument concludes, the Constitution is tainted at the root, and anyone who reveres it is revering a slaveholders' compact.

Let's not wave that away. Slavery was a monstrous evil, the Constitution of 1787 made real compromises with it, and any honest defense of the document has to start there. But the argument's conclusion does not follow from its premises, and the best evidence against it comes from the people who had the most reason to accept it: the enslaved and their descendants, who took the Founders' words and used them as a weapon against slavery and then against segregation. That is the case I want to make, in order.

The claim at its strongest

Here is the indictment in its best form, the way a serious critic would put it.

"The Constitution did not merely tolerate slavery; it protected it. The three-fifths clause in Article I, Section 2 counted three-fifths of enslaved people for apportionment, inflating the House seats and electoral votes of slaveholding states. Article I, Section 9 barred Congress from prohibiting the importation of slaves before 1808. Article IV, Section 2 required the return of people who escaped from slavery. Article V shielded the slave-trade clause from amendment until 1808. In 1857, in Dred Scott v. Sandford, the Supreme Court read this Constitution to hold that Black Americans could not be citizens and that Congress could not bar slavery from the territories. The leading abolitionist William Lloyd Garrison called the Constitution a covenant with death and an agreement with hell, and on July 4, 1854 he burned a copy in public. Slavery ended only through a war that killed hundreds of thousands. A document with that record cannot claim moral authority."

That is the strongest version, and every factual statement in it is accurate. Now here is why its conclusion fails.

Answer one: the Framers kept the word out on purpose

Start with what the text does not say. The words "slave" and "slavery" do not appear anywhere in the original Constitution. The clauses that deal with it speak of "other Persons" and "Person held to Service or Labour". That was not squeamishness. It was a choice that left a record.

On August 25, 1787, during the debate on the slave-trade clause, James Madison said, according to his own notes, that it would be wrong to admit in the Constitution the idea that there could be property in men. The clause was reworded in that debate, though the record shows no vote on his point alone. The document that resulted treats enslaved people, in its own text, as persons. That choice mattered enormously later, because it meant the Constitution could be read, without strain, as a document that never recognized a right of property in human beings. The story is told in Madison Kept the Idea of Property in Men Out of the Constitution's Words.

Even the three-fifths clause, the most notorious of the compromises, is widely misread. It was not a statement about anyone's humanity. It was a limit on slaveholder power. The slave states wanted enslaved people counted in full for representation, which would have given them more seats; the free states did not want them counted at all. Counting three-fifths gave the slave states less power than they demanded. See The Three-Fifths Clause Limited Slaveholder Power and Measured No One's Worth.

Dred Scott was a misreading, and a justice said so at the time

The critic's strongest exhibit is Dred Scott v. Sandford. Chief Justice Roger Taney's opinion in 1857 declared that Black Americans, free or enslaved, were not and could not be citizens under the Constitution. That is the worst decision in the Court's history. But it was not the only reading of the text available in 1857, and the Court's own reports prove it.

Justice Benjamin Curtis dissented. He pointed out that when the Constitution was ratified, free Black men were citizens of several states, including New Hampshire, Massachusetts, New York, New Jersey and North Carolina, and that in some of them they had the vote and could take part in choosing the very conventions that ratified the document. A Constitution ratified in part by Black voters could hardly have excluded Black Americans from citizenship by its nature. Taney had to read his conclusion into the text; Curtis read the text. The nation later sided with Curtis, in so many words, in the first sentence of the Fourteenth Amendment.

When a court misreads a document, the honest response is to correct the court, not to burn the document.

Answer two: Frederick Douglass changed his mind, and told us why

The most important witness in this case is Frederick Douglass, who escaped from slavery in Maryland in 1838 and became the most powerful abolitionist voice in the country.

Douglass began as a follower of Garrison and accepted his view that the Constitution was a pro-slavery document. Then he studied it. By 1851 he had broken publicly with the Garrisonians on the question, and he explained his reasons at length in the years that followed.

On July 5, 1852, in Rochester, New York, he delivered the speech now known as "What to the Slave Is the Fourth of July?" It is one of the most searing indictments of American hypocrisy ever spoken, and it does not spare the nation. But near its end, Douglass turns to the Constitution and says:

Interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT.

He then challenges his listeners to read the preamble and the text and find a pro-slavery guarantee in its words. In 1860, in a speech in Glasgow, Scotland, he went further and argued the question point by point: the Constitution should be judged by its text, not by the private intentions of some of its authors, and its text, read plainly, pointed to liberty.

Think about who is making that argument. A man who had been enslaved, who had every reason to reject the document, read it closely and concluded it was on his side. The modern critic who calls it irredeemable is not following Douglass. He is following the position Douglass examined and abandoned. For the full speech and its context, read What to the Slave Is the Fourth of July and Why Douglass Kept the Constitution.

Answer three: Lincoln read the Declaration as a standard

Abraham Lincoln's case against slavery rested squarely on the founding texts. In his speech on the Dred Scott decision, delivered in Springfield, Illinois, on June 26, 1857, he argued that the authors of the Declaration of Independence did not claim that all men were then actually enjoying equality. He said they meant to set up a standard maxim for free society, one to be constantly looked to and labored for, and even though never perfectly attained, constantly approximated.

That is the key move. Lincoln conceded the gap between the principle and the practice. He then argued that the principle was the point, and that the gap was a debt the nation owed. He built the Republican Party's antislavery program on that reading, and he ended his Gettysburg Address on November 19, 1863, by calling the war a test of whether a nation "conceived in Liberty, and dedicated to the proposition that all men are created equal" could long endure.

The critics' argument makes the Founders' hypocrisy the last word. Lincoln made their principle the last word and the hypocrisy the thing to be corrected. One of those approaches ended slavery.

Answer four: the Constitution's own process wrote the cure

The Constitution contained the means of its own correction, and that means was used.

The Thirteenth Amendment, ratified on December 6, 1865, abolished slavery and involuntary servitude except as punishment for crime, and its second section gave Congress power to enforce the ban by appropriate legislation. The Fourteenth Amendment, ratified on July 9, 1868, made all persons born or naturalized in the United States citizens, overruling Dred Scott, and forbade any state to deny any person the equal protection of the laws. The Fifteenth Amendment, ratified on February 3, 1870, forbade denying the vote on account of race, color or previous condition of servitude.

Those amendments were adopted through Article V, the amendment process the Framers built. A tainted-beyond-repair document is one that cannot be repaired. This one was, by its own rules, and the repair is now part of the text. See The 13th Amendment's Second Section Gave Congress a New Kind of Power for how the enforcement power changed federal authority.

Answer five: the civil rights movement appealed to the founding texts

The amendments did not end injustice on their own. After Reconstruction, the Southern states built Jim Crow, the courts blessed it in Plessy v. Ferguson in 1896, and the right to vote promised in 1870 was denied to millions for most of a century. The story of that broken promise is in The 15th Amendment Promised the Vote and Took Ninety-Five Years to Enforce.

But look at how the injustice was defeated. Justice John Marshall Harlan, dissenting alone in Plessy, wrote that "Our Constitution is color-blind." Thurgood Marshall and the NAACP lawyers won Brown v. Board of Education in 1954 by arguing the Equal Protection Clause. And in August 1963, at the Lincoln Memorial, Martin Luther King Jr. described the Declaration and the Constitution as a promissory note that America had defaulted on for its Black citizens, and demanded that the check be honored.

A promissory note is a valid debt. You do not demand payment on a fraudulent contract; you tear it up. King demanded payment. So did Douglass, and so did Lincoln. The most effective reformers in American history treated the founding texts as binding promises and held the country to them. The critics who now call the texts illegitimate are, without meaning to, cancelling the debt the movement fought to collect.

Why the illegitimacy argument proves too much

Follow the argument one step further than its fans usually do. If a document is illegitimate because its authors held slaves, then so is nearly every legal code of the ancient and early modern world, from Roman law to the English common law that tolerated slavery in its colonies. Slavery was nearly universal in human history. What was unusual about the American founding was not that slavery existed, but that the founders wrote down a principle, that all men are created equal and endowed with unalienable rights, that condemned it.

Many of them knew it. Several Northern states began to abolish slavery during and just after the Revolution: Vermont's constitution of 1777 banned adult slavery, Pennsylvania passed a gradual abolition act in 1780, and Massachusetts courts held slavery incompatible with its 1780 constitution. The Confederation Congress, in the Northwest Ordinance of 1787, banned slavery in the territory that became Ohio, Indiana, Illinois, Michigan and Wisconsin, as The Northwest Ordinance of 1787 Banned Slavery and Promised Schools shows. The founding principle was already at work against the founding compromise.

And notice where the illegitimacy argument leads in practice. If the Constitution is illegitimate, then its limits on power are illegitimate too. The Bill of Rights, the separation of powers and the equal protection of the laws all fall with it. What replaces them? The critics rarely say. A people that discards its charter because its authors were sinners has to find authors who were not, and it will be looking for a very long time.

The honest position

The honest position is neither worship nor contempt. It is the one Douglass and Lincoln took. The Founders compromised with a great evil, and that compromise cost the nation dearly. They also wrote down principles that condemned the evil and built a framework that could be amended to end it. Their descendants, Black and white, used those principles and that framework to abolish slavery, to write citizenship and equal protection into the text, and to break Jim Crow. The Constitution's legitimacy does not come from the virtue of the men who wrote it. It comes from the consent of the people who ratified and amended it, and from principles that are true whoever wrote them.

How to hold both truths at once, without excusing slavery or erasing the founding, is the subject of How to Judge the Founders Fairly Without Excusing Slavery or Erasing Them.

The case in brief

1. The Constitution of 1787 compromised with slavery, but its authors kept the words "slave" and "slavery" out of the text, and Madison objected to admitting the idea of property in men.
2. Frederick Douglass studied the document, broke with the view that it was pro-slavery, and called it a glorious liberty document in Rochester on July 5, 1852.
3. Lincoln read the Declaration as a standard maxim for free society and built the case against slavery on it.
4. The Thirteenth, Fourteenth and Fifteenth Amendments, adopted through the Constitution's own Article V, abolished slavery and wrote citizenship and equal protection into the text.
5. The civil rights movement won by holding America to its founding promises, which is the opposite of declaring them void.

What you can do: read the Thirteenth, Fourteenth and Fifteenth Amendments on the site's Constitution page alongside the Declaration's second paragraph, and teach them together.