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.
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.