Tuesday, October 9, 2012

How Slavery Shapes the Constitution

In the conversations about Black Patriots and Loyalists here, I have learned increasingly how bondage shapes the Constitution. See here, here and here (h/t Duncan Campbell). The original contruction or “intent” reactionaries on the Supreme Court emphasize the words of the Constitution rather than, say, the basic rights and their protection which give it its force. But of course, these – even the understanding of separation of powers (consider the Article 2 power of the legislature to declare war and the facts of American executive power and empire since World War II) – shift historically. Defending equal liberty in the context, say of torture in the Bush administration and Guantanamo, is a difficult matter (the decision preserving habeas corpus, the rule of law, pertaining to those imprisoned indefinitely and tortured in the so-called war on terror was only 5 votes to 4…).

This post focuses both on those aspects of the Constitution which guarantee slavery, central on the face of it, and the Second Amendment, a much deeper and more surprising aspect beneath the surface.

For instance, there are five articles which ensure bondage, though they do not name it. Article 1 section 2 clause 3 outlaws anyone helping one of the imprisoned to escape. It underlies the Dred Scott decision (one of the worst decisions, pretty much everyone acknowledges in Supreme Court history, but as Sandy Levinson has emphasized, one that follows from the Constitution):

"Art. IV, Sec. 2, Cl. 3:

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."

The reason for this provision is that a “gigantic number of blacks,” as I trace in Black Patriots and Loyalists, escaped to the Crown and were freed in exchange for fighting or working for the Royal army. The Patriots were enormously frightened by this, even though at their best, they also recruited and relied on black troops (the dead on both sides at Yorktown, as the German private Georg Daniel Flohr, recorded in his diary were “Mohren” (Moors, blacks).

As Benjamin Franklin said at the Constitutional Convention of human “property” and the black guerilla war, led by Colonel Tye, for the British, “sheep will never make an insurrection.” But Franklin did not win the debate.

In addition, Article 1, Section 2, Paragraph 3 treats slaves as three-fifths a man from the point of view of giving extra votes to their owners. Between 1788 and 1860, a slave master was President 52 {of the first 72] years of the Republic, and only slaveowners were elected to a second term.

"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."*

Justices of the Supreme Court like the infamous Taney of the Dred Scott decision were often Southerners. In 'Negro President': Jefferson and the Slave Power (2003), Garry Wills traces Andrew Jackson's genocidal policy of "removal' of Native Americans to the votes allocated to the slave-owners, defeating serious resistance from below (h/t Steve Schwartzberg)...

The three-fifths ratio, or 'Federal ratio,' had many major effects on pre-Civil War politics due to the disproportionate representation of slaveholding states relative to voters. For example, in 1793, had the seats been assigned on the basis of the free population, slave states would have been apportioned 33 seats in the House of Representatives; instead they were apportioned 47. In 1812, slaveholding states had 76 instead of the 59 they would have had; in 1833, 98 instead of 73. As a result, Southerners dominated the Presidency, the Speakership of the House, and the Supreme Court in the period prior to the Civil War. In 'Negro President, Wills argued that without the additional slave state votes, Jefferson would have lost the presidential election of 1800. In addition, as he says at p. 5, "...slavery would have been excluded from Missouri...Jackson's Indian removal policy would have failed...the Wilmot Proviso would have banned slavery in territories won from Mexico....the Kansas-Nebraska bill would have failed...."

Further, Article 1, section 9 guarantees the slave trade till 1808. But here there is a hidden history. Parallel to English abolitionists led by Thomas Clarkson who planned for the abolition of slavery in 20 years, James Wilson at the Convention fought language of the "compromise" - something mainly bad - for ensuring that then Congress could prohibit the trade, and perhaps, by implication slavery itself (h/t Hugh Schwartzberg)

"Article 1, section 9:

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."

There are also Article 1 Section 9, clause 4:

"No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken" which was clarified, after the Civil War, by the 16th Amendment.***

The "capitation tax clause" insured that any "capitation" or other "direct tax" had to take into account the three-fifths clause. It mandated that, if a head tax were ever levied, slaves would be taxed at three-fifths the rate of free people. The "direct tax" portion of this clause was redundant, because that was provided for in the three-fifths clause."

In addition, the Amendment clauses of Article 5 prohibit any amendment of the slave importation or capitation clauses before 1808. (h/t Brendan from my class at Metro)

But bondage affects the bill of rights in a more subtle way. For instance, Amendment 2 requires a militia. It is used today irrationally to support individuals possessing automatic weapons and murdering large numbers by a reactionary Court (claiming “original intent” where there was none), supported by politicians of both parties paid for by the NRA (the United States is alone in the world in tolerating mass killing of innocents with such weapons). Proponents say gun-carrying is against the government - even gun-carrying on campus at the University of Colorado - but restrictions on such weapons as well as time, place and manner of use (i.e not in public gatherings) would be sufficient to limit such killing. The Supreme "Court" can't be bothered...

A more serious possible Constitutional interpretation is, however, that a militia, where each citizen is armed, sustains a republic (see Aristotle, Machiavelli, and Rousseau) whereas a standing army is a great danger to liberty.**

But the Federalist Papers were written to attack the Shays rebellion (Captain Daniel Shays and other revolutionary soldiers left their farms on the promises of George Washington that they would have them when they returned. But banks pressed for payment of mortgages. The returned soldiers, however, demonstrated with guns at judicial hearings and at the legislature, kept their lands, and deflected, in Massachusetts and Rhode Island, the authority of “commerce.” Hamilton’s aim in the Federalist was to enshrine the latter.

But as Carl Bogus, a law professor from Roger Williams law school in Rhode Island, has wonderfully shown in “Hidden History of the Second Amendment" at the Virginia Convention here, Peyton Randolph and Patrick Henry skewered James Madison's protest that he had safeguarded slavery in the constitution. No, they said, you have given the Federal Government power and left the states unarmed. The latter can take away “our” slaves after 1808 and "we" cannot hunt them down.

Henry pushed slave-hunting strongly in 1775 – as I say in Black Patriots and Loyalists, his famous cry “Give me Liberty or give me death” is actually give me property in other human beings or give me death.

At the ASALH (the black history conference) in Pittsburgh, I met with Cassandra Newby-Alexander who teaches at Norfolk State and as a black historian from/of Virginia, knew even more about the slave-owners' motivation for this reactionary amendment...

Even the greatness of the Bill of Rights is thus stained by slavery. There is also the 10th amendment, the amendment used to defend states’ rights in all its bigotry throughout American history. And even the post-Civl War amendments like Amendment 16 permit the enslavement of prisoners (see Douglas Blackmon, Slavery by another Name).

There is something ridiculous as well as cruel in the doctrine of original intent. The American system of slavery and segregation, linked to the current prison system which jails 2.3 million people, 25% of the world's prisoners, and destroys the lives of many young black, chicano and poor white teenagers for possession of marijuana and the like, breeds such doctrines, makes the Supreme "Court" often an unintentional parody of justice. They interpret the second amendment as securing NRA-style mass murder. But they drop the Fourth Amendment against unreasonable searches and seizures to sanction police stops and searches of cars in black and chicano neighborhoods. The police find marijuana in, say, 7 cars out of a hundred and fill the prisons (Michelle Alexander, The New Jim Crow).

But the police and "court" are thus the authors of criminality against the Fourth Amendment which protects individual liberties, including those of non-whites...

*Mirroring the racism and denial of many original constructionists, the Tea Party in the House in 2011 insisted on reading the Constitution, but omitted this and 2 other clauses that sanction slavery. In this, they emulated the pretences of the drafters since the Constitution does not mention bondage by name. They knew the horror: "slavery is abhorrent," Patrick Henry once said, "but I cannot live without it." Shame at the practice of bondage while cleaving to racism is the explanation of the circumlocution then, the omission now.

**Except when the government tortures as during Bush-Cheney. There the usual relation between civilians who were war criminals and the military was reversed in that the military opposed torture, for the obvious reason that American torture licenses others to use torture against American prisoners (with 1280 military bases abroad in addition to several wars and occupations, though these are now being scaled down, the military had obvious reasons for concern.

***"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

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