New at Reason

Damon W. Root delves into the archives of Frederick Douglass to recreate his fight to slice oppression out of the Constitution.

Comments

Phileleutherus Lipsiensis | September 21, 2006, 6:10pm | #

One of course can just as equally argue that since the Constitution (as originally enacted) doesn't explicitly use the word "slave" or "slavery" that it has no power over the subject (especially given the limited nature of the document).

There is also the 13th Amendment, which does explicitly mention slavery, and thus undermines the arguments of Spooner and Douglass - in other words, why the need for such an amendment if the Constitution as originally drafted and ratified made slavery illegal?

And of course there is the ratification process itself (what gave the Constitution its authority - the convention merely drafted the document), which included states like South Carolina, which would have surely not joined in the compact if it banned slavery.

Seamus | September 21, 2006, 7:10pm | #

There is also the 13th Amendment, which does explicitly mention slavery, and thus undermines the arguments of Spooner and Douglass - in other words, why the need for such an amendment if the Constitution as originally drafted and ratified made slavery illegal?

Of course, nowadays we'd just use the Commerce Clause. (We wouldn't have needed a constitutional amendment to enact Prohibition, either.)

well, actually | September 21, 2006, 11:09pm | #

Maybe Douglas didn't consider the 13th Amendment which had yet to be written.

Again | September 22, 2006, 5:03am | #

WA,

His point is that if the Constitution initially forbade slavery as Douglass argued, then it would have been redundant to ban it again with the 13th Amendment. Just as his point is that if it had forbade slavery initially, there's no chance in hell South Carolina would have ratified the thing.

Pro Libertate | September 22, 2006, 9:31am | #

The Thirteenth Amendment is interesting in that it isn't phrased as merely a restriction on government action--like most of the rest of the Constitution--but as a restriction on individual action:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

In other words, no slavery by anybody. I don't think Spooner and Douglas were wrong--it was the external reality of slavery that prevented the protections of the Constitution from being extended to blacks, not the words of the Constitution themselves. Given the war, however, I'm not surprised that an explicit statement about slavery got tossed in. I'd have done it, too.

I've mentioned this before, but note that criminals can be enslaved. Someday, I'll have a marijuana user ironing my clothes and mowing my yard. For free.

Son of a! | September 22, 2006, 11:05am | #

Damon Root:

The phrase "other persons," he argued, is open to both an innocent interpretation ("partial citizens," i.e., resident aliens) and a malevolent one (slaves).

Where do illegal aliens fit in?

Pro Libertate:

I've mentioned this before, but note that criminals can be enslaved.

Thank you! It often feels as though I'm the only person who can see the word "except" in there.

Someday, I'll have a marijuana user ironing my clothes and mowing my yard. For free.

It looks like those wacky sitcoms had it right all along. I can't wait for multi-millionaire butler! Hijinks will ensue.

Phileleutherus Lipsiensis | September 22, 2006, 11:15am | #

Pro Libertate,

...not the words of the Constitution themselves...

Spooner and Douglas were wrong. The notes from the Convention as well as the documents surrounding the ratification make this clear. Indeed, I'll go further in arguing the Garrissonian position - the Constitution specifically and significantly protected slavery, and the union of the states depended on such during the drafting and ratification process.

Pro Libertate | September 22, 2006, 11:55am | #

The problem was with how "person" or "citizen" was defined. If you were black or, for that matter, a woman, then things were a little hairy for the first century or so. However, the Constitution itself doesn't say "except for black people, Indians, and women", and Douglas' point was that the plain language of the Constitution should protect the rights of everyone. No one then and no one now is disputing that the intent and the practice at the time were to continue the peculiar institution, regardless of what the Constitution might say.

Of course, the 3/5ths clause is a problem, and quibbling over what else it could've meant doesn't really help. It was intended to deal with the slave issue and nothing else. Not to mention that common law and precedent did and do play a role in interpreting just what the heck the Constitution meant and means. It's all a fuzzy mess, really. No wonder we had a war over the whole problem.