Editing Slavery Out of the Constitution

January 7th, 2011 at 12:04 pm David Frum | 70 Comments |

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Charles Krauthammer this morning praises Republicans for upholding “constitutionalism,” which Krauthammer defines as

the intellectual counterpart and spiritual progeny of the “originalism” movement in jurisprudence. Judicial “originalists” (led by Antonin Scalia and other notable conservative jurists) insist that legal interpretation be bound by the text of the Constitution as understood by those who wrote it and their contemporaries.

But this call to intellectual arms raises a question. The Constitution “as understood by those who wrote it and their contemporaries” had as one of its primary intentions the protection of slave property.

Article IV, Section 2 required free states to return runaway slaves to their owners.

Article I, Section 2 – the notorious “three-fifths clause”  – conferred disproportionate power within the national government to slaveholding states. (Absent the 3/5 clause, for example, John Adams would have defeated Thomas Jefferson in the presidential election of 1800.)

That same three-fifths clause also effectively prohibited Congress from using its taxing power to suppress slavery.

Article I, Section 9, protected the slave trade for 20 years, also creating a 20 year window for slave states to bulk up their numbers under the 3/5 clause.

Slaves were among the most valuable forms of property protected by the Fifth Amendment: by some calculations, the cash value of the slave property of the South exceeded the value of all real estate in the South.

Slavery was not some minor dispensable detail. It was integral to the whole system of government as originally intended, and it took a terrible war to put an end to the consequences of that original intent.

(One of the most poignantly ignorant things said during the debate over the reading of the Constitution was this, at the Ace of Spades blog: “[L]et’s maybe be a little reverential about observing the rules that have kept this a functioning, peaceful democracy for 230 years.” A peaceful democracy for 230 years? Tell it at Gettysburg.)

Slavery has been dead and gone a long time, and a busy modern Congress facing a huge array of urgent business has no particular need to re-debate issues settled a century and a half ago. But – BUT! – if you noisily proclaim your intention to rededicate the US government to – in Krauthammer’s phrase- the original intent of the authors of the Constitution, there’s something more than a little creepy about editing the document in ways precisely and specifically intended to conceal one of the most important elements of that intent.


UPDATE:

Commenters below ask: what’s wrong with reading aloud the text of the Constitution as now in force? Answer: of course nothing.*

My blog post concerned a different point, Charles Krauthammer’s suggestion that the new “constitutionalism” we are hearing about is a movement devoted to enforcing the Constitution (in Dr K’s words) “as understood by those who wrote it and their contemporaries.”

It is if we want to understand that constitution – the Constitution as written in 1787 – that the excision of slavery references becomes so troublesome. The commenters who say that slavery has been removed from the Constitution of 2010 are correct. But you can’t simultaneously say that the “real” Constitution is the Constitution that people had in mind in 1787 – and then only partially reproduce that 1787 Constitution as it was. On the other hand, if what matters is the Constitution as we have it, then James Bingham is as much a framer of the Constitution as John Madison – and the ideas and beliefs of the winners of the Civil War are as relevant to the meaning of the Constitution as the ideas and beliefs of the winners of the Revolutionary War.


* Other of course than the not very subtle insinutation that your political opponents are less respectful of the Constitution than you, but then the Democrats did a lot of that during the Bush years. Turnabout is fair play.

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70 Comments so far ↓

  • jg bennet

    Terry

    I knew it they are free traitors one and all :)

    Remember the guy the GOP chose to be Chief Justice bungled the presidential oath on Obama so if their top constitutional guy can’t get it right you can’t hold it against the poor sap who has to read it. He just does what he is told.

  • Ridge

    Originalism is a farce as envisioned by the GOP/Scalia/Federalist Society. It’s a scam meant to dress up power grabs against that raging socialist Teddy Roosevelt and all the reforms afterwards.

    I’m not a lawyer and don’t wear power ties for witless reporters’ interviews, but any student of history KNOWS that the Constitution’s meaning has been up for debate since ratified. If Scalia and his ilk don’t understand this; then he and his type are incompetent to sit on the bench. It’s easy to prove. How? Many members of the Philadelphia convention were later sitting members of the 1st Congress. They debated, in those first sessions, what *they themselves* meant just a year or so earlier when they wrote and submitted the document for ratification.

    How can a current GOP legislator, pundit, or delusional Supreme Court Judge , 230 yrs later, divine the Constitution’s true meaning, as understood at the time; when the authors had trouble doing the same. They can’t . It’s a farce. Don’t waste your breath in law school debates or Washington get togethers. Like many other things it functions as a shiny object distraction for the real damage being done to the nation.

    R

  • Gramps

    David, you plumb the depths…
    You elicit the best…

  • politicalfan

    “Except Obama, except Obama! Help us Jesus.”

    At the moment, I scratched my head and wondered- what would Jesus say?

  • A More Imperfect Union - Big Tent Revue

    [...] David Frum wrote an article today which seems to put the congressional Republicans to task for ignoring those more offensive parts of the Constitution which talk about slavery: The Constitution “as understood by those who wrote it and their contemporaries” had as one of its primary intentions the protection of slave property. [...]

  • nuser

    The hatred Palin ,Limbaugh, Krauthammer and sometimes Frum displayed towards Obama is
    appalling. Let it go ! Charles Krauthammer’s column on the Constitution was idiotic and malevolent.
    Get a life Krauthammer , you are wearing thin. Republicans are in , what more do you want?
    How many ounces of flesh?

  • nuser

    Do you people remember , Will Rodgers saying : I never met a person , I never liked? Well…..
    By the way , it too was before my time.

  • pnumi2

    nuser

    The grim visage. The malevolence flowing from the grim visage. Krauthammer can not not get any other life. This is the only life available to him. There is none other. Period.

    His eloquent meanness makes him feel alive.

    Deal with it.

  • nuser

    Oh, David , why are you a republican? You are so bright. I was born in a socialistic era , but at any time
    I had a choice.
    Keep well

  • nuser

    pnumi2
    I am so depressed. For the last two years I thought: Can’t you see?

  • pnumi2

    nuser

    Don’t be depressed. The race has never been to the swift. Since the beginning the Troglodytes have ruled the political world the way the Yankees have ruled baseball.

    God ordains. We accept.

  • politicalfan

    “Other of course than the not very subtle insinutation that your political opponents are less respectful of the Constitution than you, but then the Democrats did a lot of that during the Bush years. Turnabout is fair play.”

    I for one- Dear Mr. Frum
    Do not care for the ‘tit for tats’ that are played out in the name of politics.
    I think that this game playing has cost the country a great deal, wouldn’t you agree?
    Turnabout after all is only fair play if the change of direction is successful and the entire country does not suffer!

    Krauthammer’s praise appears to be nothing more or nothing less but
    a ‘seal of approval’ for good ole’ Republican strategy. I still can’t stop to ponder why this has not been read before? I find the timing oddly ironic.

    As an earlier post suggested, the women screaming out actually hijacked the event in my view. This ‘freedom of speech’ played out on the news several times sad to say. So, if the purpose was to somehow display that this woman has her ‘freedom of speech’ which in fact was not free in the true sense. Then the gaveling of her to be quiet and to futhermore remember that she was a guest in the House might be deemed as ‘accidentally ironic’? Assuming that she was in fact a woman who felt the need to invoke the President (in name) and “Jesus” in Congress, while listening to the constitution being read is and example of ‘ironic beyond belief’. Women did not have a right to vote! Would she have in fact been standing on that balcony if it were not for the ‘fact’ that the constitution (was amended for her very right to invoke any and all men on that balcony)and to further have the right (to or not to) vote for the current President in which she invoked? She should have yelled, “Elect a woman President!” That would have been ironically great!

    The only lessons that I learned is that we must read, avoid playing tit for tat and tune in for dramatic irony to play out in Congress once again!

  • jquintana

    This article is nothing more than red meat for Frum’s left-wing followers. And Frum doesn’t seem to understand that this issue gives the left the motivation to ignore any section of the Constitution as they see fit in order to push their anti-state’s rights, central control, big government socialist agenda.

    The founding fathers? Eh, just a bunch of white-male-slave-owning-elitists, so let’s just throw the baby out with the bathwater. After all, how can anything good come from guys like THAT?

  • sdspringy

    The political realities of 1787 are not that much different than today. If there was to be a United States of America there was the only one document that would get the job done and it had slavery.

    However 75 years later, some might think that was too long, a war developed that claimed over
    620,000 lives. Think about it, 620,000 people died in the war to end slavery in the United States.

    If that is not enough to ease your guilt then having some addition self flagellate by a politician will not provide any relief for you either. The sin of slavery has been washed clean from the Constitution.

    Lincoln’s second inaugural:

    If we shall suppose that American Slavery is one of those offences
    which, in the providence of God, must needs come, but which,
    having continued through His appointed time, He now wills
    to remove, and that He gives to both North and South, this
    terrible war, as the woe due to those by whom the offence came,
    shall we discern therein any departure from those divine
    attributes which the believers in a Living God always ascribe
    to Him? Fondly do we hope — fervently do we pray — that
    this mighty scourge of war may speedily pass away. Yet, if God
    wills that it continue, until all the wealth piled by the bond-
    man’s two hundred and fifty years of unrequited toil shall be
    sunk, and until every drop of blood drawn with the lash, shall
    be paid by another drawn with the sword, as was said three
    thousand years ago, so still it must be said “the judgments of the
    Lord, are true and righteous altogether.”

  • balconesfault

    Think about it, 620,000 people died in the war to end slavery in the United States.

    Actually, around 360,000 died in the war to end slavery in the US.

    260,000 died in their war to preserve slavery.

  • politicalfan

    “And Frum doesn’t seem to understand that this issue gives the left the motivation to ignore any section of the Constitution as they see fit in order to push their anti-state’s rights, central control, big government socialist agenda.”

    Why do we have a constitution?

    “A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk. One way that this was accomplished was to separate the power of government into three branches, and then to include checks and balances on those powers to assure that no one branch of government gained supremacy. This concern arose largely out of the experience that the delegates had with the King of England and his powerful Parliament. The powers of each branch are enumerated in the Constitution, with powers not assigned to them reserved to the states.” http://www.whitehouse.gov/our-government/the-constitution

    Remember JQ that the Republicans have an opportunity to shine. If they do not take this opportunity, those powers will change. People might want their agenda to go further but let’s be honest here for a minute. The concept of ‘socialism’ will not happen and as far as big government there are a lot of hands from both parties on that one. To act like both parties have not messed up to play to their base is silly. A visit of our history will remind us that in fact it has taken people time to change.

    I don’t paint everyone with a broad brush, even when the rhetoric is heavy. My team would be made up of Republicans and Dems. Just not all of them. There is no ‘us against them.’ We are the ‘us’ as in Americans. Maybe Frum realizes that there is more to learn from those that think differently or maybe he has recently reviewed a copy of the “Art of War?” ” You have to believe in yourself.”

    “If your opponent is temperamental, seek to irritate him. Pretend to be weak, that he may grow arrogant. If he is taking his ease, give him no rest. If his forces are united, separate them. If sovereign and subject are in accord, put division between them.” Sun Tzu
    Maybe Frum is a psychological strategist and your misreading his intentions! Walk with those who think differently. There is always something to learn!

  • Nanotek

    “…gives the left the motivation to ignore any section of the Constitution as they see fit in order to push their anti-state’s rights, central control, big government socialist agenda.”

    as a liberal — a member of the “left” in your mind — and free-market advocate (which requires regulations against fraud and stealing) I wonder about the narrative that plays in your mind.

    and be honest about “state’s rights” advocacy (actually state’s ‘power’ not ‘rights’) — the agenda is to strip away people’s federal rights. For example, the state’s-rights crowd argued for decades that they could make criminal marriages between people who didn’t have the same skin color. Having lost that argument, they now argue they can deny marriage equality to same-gender couples. Lovely crowd.

  • pnumi2

    balconesfault

    “Think about it, 620,000 people died in the war to end slavery in the United States.”

    “Actually, around 360,000 died in the war to end slavery in the US.
    260,000 died in their war to preserve slavery.”

    Thanks for the break down. I thought it was more even.

  • Chris Balsz

    “For example, the state’s-rights crowd argued for decades that they could make criminal marriages between people who didn’t have the same skin color. Having lost that argument, they now argue they can deny marriage equality to same-gender couples. Lovely crowd.”

    Wrong. Every state refused to celebrate same-gender marriage for 216 years. It’s the “living Constitution” folks who insist it was legalized since 1868, only, somehow, nobody was smart enough to figure it out until now.

    The 14th Amendment was seen as so closed, that 3/4ths of the American public found it necessary to adopt a separate amendment to guarantee women the vote; and a separate amendment to guarantee the District of Columbia the vote; and a separate amendment to guarantee 18-year-olds the vote. The idea that you could sue to amend the Constitution is a modern error.

  • rockstar

    Screw original intent, we need socialism. I mean, everyone in Europe is doing it, so why aren’t we?