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Race and Slavery in the American Constitutional System: 1787-1865

Published online by Cambridge University Press:  12 May 2020

Don E. Fehrenbacher
Don E. Fehrenbacher*
Affiliation:
Stanford University
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Extract

For some time now, physical anthropologists have been disengaging themselves from the use of race as an objective characteristic of humankind. But historians, and especially historians of the United States, must continue to deal with race as a subjective reality — that is, with the idea or consciousness of race as a social force. Of course racial distinctions are never entirely free from cultural connections. Thus Africans brought in chains to colonial America were regarded as ideally fitted for servitude, not only because of their perceived physical characteristics (including intellect and disposition) but also because they were viewed as heathens and savages. Conversely, ethnocultural distinctions may have strong racial overtones, such as in the image and identity of twentieth-century Hispanic-Americans.

Type
Research Article
Information
News for Teachers of Political Science , Volume 41 , Spring 1984 , pp. 20 - 23
Copyright
Copyright © American Political Science Association 1984

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References

1 See the summary of the “race, no-race” controversy among anthropologists, with the comments of numerous scholars, in Littlefield, Alice, Lieberman, Leonard, and Reynolds, Larry T., “Redefining Race: The Potential Demise of a Concept in Physical Anthropology,” Current Anthropology, 23:641-55 (1982)CrossRefGoogle Scholar.

2 lt has been argued that the framers had slavery in mind when they wrote certain other clauses of the Constitution, such as the provision in Article IV, Section 4, assuring each state of federal protection against “domestic violence” (see, for example, Wiecek, , Sources of Antislavery Constitutionalism, pp. 62–63.Google Scholar). Perhaps they did, but not exclusively or even primarily so. The guarantee of protection against domestic disorder would surely have been included even if slavery had not existed. Only the three clauses discussed in the text clearly owed their presence in the Constitution to the presence of slavery in the Republic.

3 Nash, A.E. Keir, “A More Equitable Past? Southern Supreme Courts and the Protection of the Antebellum Negro,” North Carolina Law Review, 48: 197–242 (1970)Google Scholar; Nash, , “Fairness and Formalism in the Trials of Blacks in the State Supreme Courts of the Old South,” Virginia Law Review, 56:64–100 (1970)CrossRefGoogle Scholar; Nash, , “Reason of Slavery: Understanding the Judicial Role in the Peculiar Institution,” Vanderbilt Law Review, 32:7–218 (1979)Google Scholar; Nash, “In Radical Interpretations of American Law: The Relation of Law and History,” Michigan Law Review, forthcoming; Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (1975)CrossRefGoogle Scholar; Tushnet, Mark, “Approaches to the Study of the Law of Slavery,” Civil War History, 25:329-38 (1979)CrossRefGoogle Scholar; Tushnet, , The American Law of Slavery, 1810-1860: Considerations of Humanity and Interest (1981)Google Scholar. See also Schnell, Kempes Y., “Court Cases Involving Slavery: A Study of the Application of Anti-Slavery Thought to Judicial Argument,” Ph.D. Dissertation, University of Michigan, 1955Google Scholar; Hindus, Michael S., Prison and Plantation: Crime, Justice and Authority in Massachusetts and South Carolina, 1767-1878 (1980)Google Scholar; Genovese, Eugene D., “Slavery in the Legal History of the South and the Nation,” Texas Law Review, 59: 969-98 (1981)Google Scholar; Reid, John Phillip, “Lessons of Lumpkin: A Review of Recent Literature on Law, Comity, and the Impending Crisis,” William and Mary Law Review, 23:571–624 (1982)Google Scholar.

4 Prigg v. Pennsylvania, 16 Peters 539 (1842); Ableman v. Booth, 21 Howard 506 (1859). In the Prigg case, five out of seven justices endorsed the “historical necessity” thesis setting the fugitive-slave clause apart as a “fundamental article” of the Constitution without’ which the Union could never have been formed. There is no sound historical basis for such an interpretation.

5 The House in 1836 ordered that all antislavery resolutions be tabled automatically, without being printed or referred to committee. A standing rule adopted in 1840 went even further by providing that such petitions should not be received at all. The Senate achieved the same purpose less formally by tabling motions to receive or not receive petitions.

6 American Insurance Co. v. Canter, 1 Peters 511. In legislating for the territories, Marshall said, “Congress exercises the combined powers of the general and of a State government.” Since the authority of a state government to establish or abolish slavery was generally acknowledged, Marshall's words seemed to confirm congressional control over slavery in the territories.

7 One significant manifestation of this tendency was a ruling in 1821 by Attorney General William Wirt. Asked by another cabinet member whether a free black might command an ocean-going vessel operating out of Norfolk, given the fact that such commanders must by law be citizens of the United States, Wirt answered in the negative. Blacks living in Virginia, he said, were not treated as citizens of that state and therefore could not be citizens of the United States. Official Opinions of the Attorneys General of the United States, I, 506-9.