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Berns: Comment on Rowan

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Maryland Law ReviewVolume 47 | Issue 1 Article 7Berns: Comment on RowanWalter BernsFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Legal History, Theory and Process CommonsThis Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted forinclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationWalter Berns, Berns: Comment on Rowan, 47 Md. L. Rev. 22 (1987)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol47/iss1/7COMMENTWALTER BERNS*I begin by setting the stage for a question. I then ask it. Putyourself in the position of a delegate to the Constitutional Conven-tion in Philadelphia in 1787. You are an antislavery white person or,perhaps, a black person. Or imagine yourself one of the few blackpersons eligible to vote for delegates to the state ratifying conven-tions.' Do you, as a delegate, vote for the Constitution? Or, as avoter, do you vote for someone pledged to vote in favor ofratification?Let us consider a few provisions of the United States Constitu-tion and what they suggest about the expression of equality in thedocument.Article I, section 2, clause 3 states:Representatives and direct Taxes shall be apportionedamong the several States which may be included within thisUnion, according to their respective Numbers, which shallbe determined by adding to the whole Number of free Per-sons, including those bound to Service for a Term of Years,and excluding Indians not taxed, three-fifths of all otherpersons.2The clause euphemistically acknowledges the existence of slav-ery in some of the states. It does not, however, speak of a blackperson as three-fifths of a person. In fact, to carry out the intent ofthe clause it would be necessary to count every black as one personand then to multiply the total by three-fifths.Article IV, section 2, clause 3 states:No person held to Service or Labour in one State, underthe Laws thereof, escaping into another, shall, in Conse-quence of any Law or Regulation therein, be dischargedfrom such Service or Labour, but shall be delivered up onClaim of the Party to whom such Service or Labour may bedue.3* John M. Olin Professor of Government, Georgetown University. M.A., Universityof Chicago, 1951; Ph.D., 1953.1. See generally W. JORDAN, WHITE OVER BLACK 126-27, 412-14 (1968) (discussingeighteenth century voting rights of blacks).2. U.S. CONST. art. I, § 2, cl. 3.3. Id. at art. IV, § 2, cl. 3.BERNS: COMMENT ON ROWANThere is no doubt that the "person held to Service or Labour"in this clause refers to a slave. From the records of the Convention,it appears that the majority in the debates insisted on euphemismswithin the document such as the one found in this clause, and noone objected to them.4 The development of this particular constitu-tional provision is instructive. First introduced on August 28, 1787,by South Carolinians Pierce Butler and Charles Pinckney, it spokefrankly and brutally of requiring "fugitive slaves and servants to bedelivered up like criminals." 5 After some discussion, this languagewas withdrawn and replaced by the following version: "If any per-son bound to service or labor in any of the United States shall es-cape into another state, he or she . . .shall be delivered up to theperson justly claiming their service or labor." 6 Upon objection tothe implication that a person may "justly" claim the services of aslave, or that a person may justly be held as a slave, the Committeeof Style revised the provision to read: "shall be delivered up onclaim of the party to whom such service or labor may be due." 7 Thisversion was found objectionable because it began with the words:"No person legaly held to service or labour in one state."" An un-identified delegate argued that the term "legally" might be under-stood to favor "the idea that slavery was legal in a moral view." 9 Sothe Convention responded by striking the word "legally" and sub-stituting the words "under the laws thereof."' 1As Luther Martin, a member of Maryland's delegation to theConvention, explained the compromise over this constitutional pro-vision to the legislature of his state," 1 the delegates "were anxious toavoid the admission of expressions which might be odious in theears of Americans." 12 Then he added that many of the delegatesbelieved "[t]hat slavery [was] inconsistent with the genius of repub-4. THE ANTI-FEDERALIST PAPERS AND THE CONSTITUTIONAL CONVENTION DEBATES161-62 (R. Ketcham ed. 1986).5. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 443 (M. Farrand ed.1937) [hereinafter 2 FARRAND].6. Id. at 453-54.7. Id. at 601-02.8. Id. (emphasis added).9. Id. at 628.10. Id.11. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 172-232 (M. Farranded. 1966) [hereinafter 3 FARRAND]. This particular discussion was presented by LutherMartin in his "Genuine Information" address delivered to the Maryland Legislature onNovember 29, 1787. See also Reynolds, Luther Martin, Maryland and the Constitution, 47MD. L. REV. 291 (1987).12. 3 FARRAND, supra note 11, at 210.1987]MARYLAND LAW REVIEWlicanism, and has a tendency to destroy those principles on which itis supported." 3Article I, section 9, clause 1 states:The Migration or Importation of such Persons as any of theStates now existing shall think proper to admit, shall not beprohibited by the Congress prior to the Year one thousandeight hundred and eight, but a Tax or duty may be im-posed on such Importations, not exceeding ten dollars foreach Person.'4If the persons referred to in this provision are slaves who are im-ported, then migration must refer to their interstate movement. Ifthis is a correct interpretation of the language, then after January 1,1808, Congress had the power not only to forbid the further impor-tation of slaves, which it did,' 5 but also to prohibit their movementfrom state to state. In short, after January 1, 1808, Congress hadthe power to outlaw the interstate slave trade. This view of theclause is supported by another of its provisions. The temporary re-striction on Congress' power to regulate foreign and interstate com-merce itself was restricted to the states then existing. From thebeginning Congress had the power to forbid the migration of slavesto new states and to the territories, a power it exercised in the case ofsome territories.' 6 Congress' failure to prohibit the interstate slavetrade reflects the political climate of the early nineteenth century.At the time abolishing the interstate slave trade was politicallyimpossible.' 7The conclusion I would draw from the above three provisions isthat the Constitution was, to the greatest extent possible, an anti-slavery document. The word slavery does not appear in it, and slav-ery could have been abolished without changing a word of theoriginal document. The Constitution permitted slavery by not for-bidding the states to establish it, but there is no question in my mind13. Id. at 212.14. U.S. CONST. art. I, § 9, cl. 1. See also Berns, The Constitution and Migration of Slaves,78 YALE L.J. 198 (1968) (addressing this proscription).15. Act of March 2, 1807, ch. 22, 2 Stat. 426.16. See, e.g., Act of February 28, 1803, ch. 10, 2 Stat. 205.17. Luther Martin discussed the political climate in his "Genuine Information" ad-dress to the Maryland General Assembly, contained in 3 FARRAND, supra note 11, at 172-232. The Eastern States, concerned that the Southern States would lay restrictions onthe Navigation Acts, were willing to provide the Southern States with temporary author-ity to pursue the slave trade in return for an agreement not to lay such restrictions. Acommittee comprised of one delegate from each State agreed "by a great majority" thatthe government would not attempt to prohibit the importation of slaves, and that itwould omit the restrictive clause relative to the Navigation Acts. Id. at 211.[VOL. 47:22BERNS: COMMENT ON ROWANthat an explicit attempt to forbid slavery in the states would haveprecluded the formation of the Union as we know it. It would haveled to the rejection of the Constitution in the Southern States whereninety-seven percent of the black persons then resided.I do not know whether there then would have been a Confeder-ate States of America. I do know what sort of constitution such aconfederation would have had: a constitution similar to the onedrawn up by the Confederates in 1861. Consider the followingstatement delivered by Alexander Stephens, vice-president of theso-called Confederate States of America, at Savannah, Georgia, onMarch 21, 1861:The prevailing ideas entertained by [Jefferson] and most ofthe leading statesmen at the time of the formation of theold constitution [i.e., our Constitution], were that the en-slavement of the African was in violation of the laws of na-ture: that it was wrong in principle, socially, morally, andpolitically. It was an evil that they knew not well how todeal with, but the general opinion of the men of that daywas, that somehow or other, in the order of Providence, theinstitution would be evanescent and pass away .... Thoseideas, however, were fundamentally wrong. They restedupon the assumption of the equality of races. This was anerror. It was a sandy foundation, and the idea of a govern-ment built upon it; when the "storm came and the windblew, it fell."Our new government is founded upon exactly the op-posite idea; its foundations are laid, its corner stone restsupon the great truth that the negro is not equal to thewhite man. That slavery-subordination to the superiorrace, is his natural and normal condition. This, our newgovernment, is the first, in the history of the world, basedupon this physical and moral truth.' 8That is the vice-president of the so-called Confederate States ofAmerica speaking in 1861 of the alternative to the Constitution of1787. It is especially instructive that, like Abraham Lincoln, Ste-phens understood that the Constitution somehow embodied theprinciples of the Declaration of Independence. That is preciselywhy Stephens rejected the Constitution and why Lincoln embracedit. As Lincoln believed, the Declaration of Independence, with its18. A.H. Stephens, "Corner Stone Speech" at Savannah, Georgia (Mar. 21, 1861),reprinted in H. CLEVELAND, ALEXANDER H. STEPHENS, IN PUBLIC AND PRIVATE WITH LET-TERS AND SPEECHES, BEFORE, DURINC, AND SINCE THE WAR 721 (1866).1987]MARYLAND LAW REVIEWprinciple of the natural equality of all human beings, is the standardmaxim of a free society.' 9Of course, that principle was violated at the beginning. Lincolnknew that, Madison knew that, Hamilton knew that, and Jeffersonknew that. Jefferson, for example, knew that blacks also had rights.He said so explicitly.20 He knew that there is no respect in which allmen, except black men, are equal. They are not equally white,equally British, equally intelligent, equally beautiful, or equally any-thing. If black men do not have rights, white men do not haverights; and if white men have rights, black men have rights. This iswhy Chief Justice Roger B. Taney, writing for the majority in DredScott v. Sandford,2 in effect denied that black persons were humanpersons. Without such a denial Justice Taney could not have de-prived the black man of rights without depriving the white man aswell. As usual, Lincoln saw clearly the implications of this decision:Now, when [by means of the Dred Scott decision], youhave succeeded in dehumanizing the Negro; when youhave put him down and made it forever impossible for himto be but as the beasts of the field; when you have extin-guished his soul, and placed him where the ray of hope isblown out in darkness like that which broods over the spir-its of the damned; are you quite sure the demon which youhave roused will not turn and rend you? What constitutes thebulwark of your own liberty and independence?22What, indeed, except the equal possession of rights? As Lincolnsaid in his well-known message to Congress, exhorting its membersto vote for emancipation, it is only by "giving freedom to the slave,19. This belief was set forth in general terms by Lincoln on several occasions: his"Speech at Peoria" in 1854; his "House Divided Speech" delivered at Springfield, Illi-nois in 1858; and his "Address at Cooper Institute" in 1860. In a letter, he exhibited hisdetermination to fight for restoration of the Missouri Compromise and stated:How can anyone who abhors the oppression of negroes, be in favor ofdegrading classes of white people? Our progress in degeneracy appears to meto be pretty rapid. As a nation, we began by declaring that "all men are createdequal." We now practically read it "all men are created equal, except negroes."When the Know-Nothings get control, it will read "all men are created equal,except negroes, and foreigners, and Catholics." When it comes to this I shallprefer emigrating to some country where they make no pretense of lovingliberty....Letter from Abraham Lincoln to Joshua F. Speed (Aug. 24, 1855), reprinted in ABRAHAMLINCOLN: His SPEECHES AND WRITINGS 335-36 (R. Basler ed. 1946) (emphasis omitted).20. T. JEFFERSON, NOTES ON THE STATE OF VIRGINIA 155 (W. Peden ed. 1972).21. 60 U.S. (19 How.) 393 (1857).22. A. Lincoln, Speech at Edwardsville, Illinois (Sept. 11, 1858), reprinted in ABRAHAMLINCOLN: His SPEECHES AND WRITINGS 473 (R. Basler ed. 1946) (emphasis in original).[VOL. 47:22BERNS: COMMENT ON ROWAN[that we can] assure freedom to thefree." 3In another speech attacking the Dred Scott decision, Lincoln alsosaid that the Declaration of Independence-"our ancient faith"-was, and was intended to be, "a stumbling block to those who ...might seek to turn a free people into the hateful paths of despot-ism."' 24 True to Lincoln's word, a stumbling block it has proved tobe.I can make my point by contrasting our experience with slaveryto that of Germany with Nazism. No one could rightly say that Na-tional Socialism, or Hitlerism, was un-German; there was no princi-ple that made it so. Germany was a Christian nation, andChristianity has had a long history of anti-Semitism. Germany'sgreatest poet, Goethe, in his novel, Wilhelm Meister, has the herosketch the plans for a new society, a new Germany, at the conclusionof which he says, "Of course, there will be no room for Jews in thissociety. ' 2' Although fascism, or Nazism, may have been inhuman, itwas not un-German. The Declaration of Independence, however,makes slavery un-American. It is a "stumbling block" in the pathsof despots. This explains why Alexander Stephens had to renounceit, and renounce its principal author-Thomas Jefferson.26I close by repeating my opening question. As a delegate to theConstitutional Convention of 1787, do you sign the Constitutionthat provides some hope for an enslaved people, or do you reject itbecause it is not perfect in its compromise with the slave power? Doyou reject it and, by so doing, consign ninety-seven percent of blackpeople to states that do not recognize the injustice of slavery?The answer is not easy; but, I submit, it is clear.23. A. Lincoln, Annual Message to Congress (Dec. 1, 1862), reprinted in ABRAHAMLINCOLN: His SPEECHES AND WRITINGS 688 (R. Basler ed. 1946) (emphasis in original).24. A. Lincoln, Speech at Springfield, Illinois (June 26, 1857), reprinted in ABRAHAMLINCOLN: His SPEECHES AND WRITINGS 361 (R. Basler ed. 1946).25. J. GOETHE, WILHELM MEISTER 155 (1795).26. H. CLEVELAND, supra note 18, at 717-29.1987]

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