Was the Constitution Racist? Sanders and Wilentz May Both Be Wrong

Sean Wilentz Bernie Sanders

Bernie Sanders thinks America was founded on racist principles. Sean Wilentz, the Pulitzer Prize nominated historian, disagrees. “The myth,” wrote Wilentz in an op-ed published in the New York Times, “that the United States was founded on racial slavery persists, notably among scholars and activists on the left who are rightly angry at America’s racist past.”

So who’s right? Neither. Bernie Sanders’s statement about America’s racist Founding was not a proper argument, nor was it really meant to be. Sanders’s concern is justice today, and whether it is income equality or racial injustice he is targeting, the past is more of a convenient backdrop than a site of serious inquiry. Sean Wilentz’s argument was more substantial, albeit deliberately tendentious. But he is no less wrong than Sanders.

Bernie Sanders made his statement during a speech at Liberty University on Monday last. The spectacle was, frankly, uplifting. After a rousing Christian rock performance and a generous introduction from Liberty University President Jerry Falwell, Jr., Bernie proceeded to be Bernie. Before an ideologically hostile (but exceedingly polite) crowd, he announced his support for a woman’s right to an abortion and gay rights within the first minute of his speech. He went on to condemn the United States as a country brimming with injustices. And he found this injustice historically. “This country was founded way back… on racist principles,” said Bernie, and he quickly added, “and that’s a fact.”

Sean Wilentz’s retort came in the New York Times, where he defended the Constitution as a glorious document of liberty. Wilentz admitted that there were “concessions” to slavery in the Constitution, but called them “consolation prizes.” The “notorious” three-fifths clause was at least better than the southern demand that slaves be counted at five-fifths for the purposes of representation. The slave trade clause (which protected the slave trade from congressional interference until 1808) Wilentz read as a positive—southerners wanted the trade to go on forever, but relented when “antislavery Northerners erupted in protest.” And finally, the fugitive slave clause—a clause that offered slaveholders new protections for their property in the new United States—was “a measure of slavery’s defensiveness” rather than its strength.

Slavery’s defensiveness also explains for Wilentz why southerners came to insist on a proslavery reading of the Constitution. In the face of successful policies of gradual emancipation north of the Mason-Dixon line, slaveholders in the 1830s tried to claim that the Constitution wrote slavery into national law. This was the Constitution of John C. Calhoun, the inveterate vampire of southern rights. In the face of such an ideological tirade, antislavery leaders demanded that the original, antislavery Constitution be restored—a Constitution that confined slavery to state borders and did not recognize it as a national institution.

That’s a nice argument. It was, roughly, the argument of Salmon P. Chase, of Abraham Lincoln, and of Frederick Douglass. These are powerful historical figures for Wilentz to have in his corner. It infuriates professional historians, many of whom have spent the last thirty years teasing out all the ways that slavery has openly, and sometimes less visibly, been helped by constitutional compromises.

Nice arguments are not necessarily good ones. To be fair, Wilentz does not have the room in a 750 word op-ed piece to be sophisticated. He should not lose points for being forceful and direct rather than playing the scholar’s game of endless qualification and nuance. Bernie makes muscular arguments, after all, so why should Wilentz not? Nonetheless, historians who disagree ought to strike at the heart of Wilentz’s argument rather than picking at its edges. Of course the three-fifths compromise was more than a consolation prize, and of course the fugitive slave clause was proactive more than it was defensive. But Wilentz was also right to point out that the slaveholders wanted more at the Constitutional Convention and did not get it. Quibbling over details does not vitiate Wilentz’s argument.

The real answer to Wilentz is to point to one central, yet unarticulated, assumption that underlies his article: the notion that there was one original project and one original essence to the Constitution which should control our interpretation of it. We know this as originalism. Conservative jurists like originalism because it is a constraining principle—it limits what can be done with the Constitution and thus prevents judges (and presumably legislators) from doing pesky things like discovering a right to privacy in the text of the Bill of Rights, or invalidating Jim Crow laws on the basis of the Fourteenth Amendment. Wilentz’s argument more or less picks up this idea—that we can locate an original Constitution that reflects the document’s true nature and that should guide us today.

How to create a Slave Power in 7 easy steps

But this is just not true. In virtually every area that mattered most, the Constitution was forged by debate, compromise, and ambiguity. This is certainly true of slavery. The Constitution protected slavery in critical ways. But it also empowered a national government to take specific actions against slavery in ways that the preceding Articles of Confederation did not. The Constitution gave slaveholders a positive property right to their fugitive servants (read: “slaves”), wherever they might be found in the Union. But it also refused “to admit property in men,” a powerful denial of the very right that the Fugitive Slave Clause guaranteed. The list of ambiguities goes on and on.

The truth of the matter is that the Framers were not thinking in “Antislavery” or “Proslavery” terms. Such labels belong to a much later era. Wilentz correctly identifies the 1830s as the point where such labels became hard and fast—when southerners began insisting upon a proslavery construction of the Constitution, and when abolitionists began formulating an antislavery response. His error is to assume the mantle of the antislavery argument and read it back into 1787.

But if this makes Wilentz wrong, it does not necessarily make Bernie Sanders (or his more sophisticated academic supporters) right. The idea that America was founded on racism is a platitude. Of course it was. But this platitude elides the very real historical presence of a nascent idea of equality before the law, a principle which had real effect during the 1780s. Certainly this principle existed amidst pervasive and systemic racism. The Constitution’s refusal to acknowledge explicitly the legal disabilities of slavery makes it an anomalous document of sorts in its time. But this does not mean it was unimportant. To the contrary—in the face of gross injustice, it is perhaps only the anomaly that matters. That is the only thing that can spark change.

Such a revelation will hopefully lead to a more sober look at our history. Conservatives who want to venerate the Constitution must take seriously the fact that white supremacy girded the Founding generation’s thinking. Liberals must stop trying to pin the nation’s problems on the inequalities of race/class/gender built into the Founding. We would be far better off to admit that we started in an uncertain place and tried to reconcile unimaginable contradictions. The ongoing debate over these contradictions is the actual stuff of our Constitution.

H. Robert Baker teaches history at Georgia State University. He is the author of The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (2007) and Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution (2012). He is currently working on a book about Napa Valley in the 1970s and 80s.

Author: H. Robert Baker

Robert Baker teaches at Georgia State University, in Atlanta, Georgia. He lives in East Point, Georgia. He is not originally from Georgia.

7 thoughts

  1. Two points: First, race is conspicuously absent from the Constitution, although slavery is present. More could be said about this. Second, it is worth remembering that it was the South that concluded it could not successfully continue slavery under the Constitution and quit. Compare the two documents line-by-line and you will see precisely what southern enslavers found threatening about the US Constitution.

  2. very subtle arguments but why does the constitution mention blacks as being “worth 3/5 of a human being”. Is that not racist enough and not enough slave-owner-pleasing for wilentz? Has wilentz never heard that dixie’s liberty-planters/founding thugs opposed including in the constitution even a miserly fig-leaf passage about abolishing slavery sometime in the distant future? were the “founding thugs”TM who owned slaves/speculated in indian-genocide “futures” (like g.washington and jefferson) only faking their greedy racist viciousness because in reality they were instead closeted mother-theresianists who wanted to write an immaculate-from-conception constitution for a country that did not exist yet ?!

    1. are the arguments too subtle to be powerful? James Forten and Frederick Douglass both drew inspiration from the Constitution. But they did so with clear eyes, aware that constitutional government in the United States (and all through the free states) was shot through with racism. Interestingly, neither required that the “original Constitution” be enforced. Rather, they believed that its aspirations might be fulfilled, if enough people could be persuaded to fight for it. Perhaps that is Bernie’s point…

    2. “… why does the constitution mention blacks as being “worth 3/5 of a human being”.” Actually, it doesn’t. That’s something modern eyes read into it. The actual words, “… which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” We tend to forget the number of “indentured servants” in the earliest days of settlement. I don’t know how to find out how many there still were in 1787, but it may have been a substantial number. So the actual words do not specify persons of color (or black people, or negroes, whichever formulation you prefer).

  3. Here’s what the Constitution actually says (and Wilentz’s insistence that it’s either a document creating liberty OR a racist document is a simplification beneath a historian of Wilentz’s abilities. Basically, unless you want to argue that slavery was not racist (which, good luck), it would be impossible to understand the 3/5th clause, the denial of the end of the slave trade of 25 years, or the legal establishment of slavery in the whole Republic (not just slave states no matter what the free states might want) as anything but racist, establishing a racial hierarchy, and, truly, thorny racial issues that not only led to the sectional conflict that nearly tore the United States to pieces in the 1860s, but that continue to haunt us today.

    Article I.
    Section. 2. (“three fifths of all other persons” meant that slave states counted their slaves as 3/5th of a person at once denying slaves human and civil rights, and *using* them as additional political power for southerners in Congress. This is the very definition of a racial hierarchy)

    Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

    Section. 9. (“Importation of persons” means slave trade. The Constitution denied the ability to end the slave trade for 25 years after ratification)

    The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

    Article. IV. Section. 2. (this means slavery is upheld and protected by the Constitution EVERYWHERE in the United States, even if the state is free, slaves must be captured and returned.)

    No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

    1. Good facts, but with two caveats. The first is that the slave trade was protected for 20 years, not 25. The second is that the 3/5ths clause was about counting population for the purposes of representation. This does not suggest that black people were 3/5ths of a person, but rather that you count the slave population at a reduced rate. Free blacks are counted at 5/5ths. To be fair, the clause cannot be interpreted EXCEPT as an understanding of the reduced and unequal status of slaves in the United States, and it does supporters of the Constitution little good to quibble too much with this point. It does better to point out that national representation was based on different principles of representation, none of which was wholly democratic. The Senate, for instance, cannot pretend to be a democratic body. While the 3/5ths clause was operating, the House of Representatives was an imperfect representation of the People, and not truly democratic. And the electoral college combined the two.

      One substantive disagreement–the fugitive slave clause only made slavery national in the sense of blocking free states from freeing or protecting refugees from slavery who fled to their borders. It did not give slaveholders the right to take their slaves into any state in the United States, nor did it give slavetraders the right to pass through free states with coffles of men, women, and children in chains. This is something less than making slavery a “national” institution. Slaveholders wanted these rights. It is possible that they argued for it in the Convention (we don’t have records to verify this, but there is at least one hint of it), but regardless, they did not receive positive declarations of it in the text. Nonetheless, slaveholders in the 1850s were arguing that the Constitution protected precisely these rights. This is what Lincoln and Republicans (abolitionist and otherwise) took exception with.

      So, to state my argument again, the real meaning of the Constitution was locked in the debate between these positions, rather than any original meaning. The slaveholders lost that argument in 1860. And so they petulantly picked up their marbles and went home. The result was Civil War.

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