Happy Birthday to the U.S. Constitution. James Madison wrote it, John Marshall interpreted it, Roger Taney and Jefferson Davis tried to destroy it, and Abraham Lincoln not only saved, but also redeemed it.
Brilliant document though it was when adopted by the Constitutional Convention 226 years ago, the U. S. Constitution was originally infected with the deadly virus of slavery. By all logic, neither the document nor the democratic government it established had any chance of surviving to adulthood.
This year is the 50th anniversary of the march for freedom and Dr. Martin Luther King’s “I Have A Dream” speech, (Aug. 28, 1963), and it’s the 150th anniversary of the Emancipation Proclamation (Jan. 1, 1863) and Lincoln’s Gettysburg Address (Nov. 19, 1863).
To appropriately celebrate and learn from those and other momentous events in U.S. history, it’s important to periodically reflect on some nearly fatal Constitutional flaws of our beginnings. Otherwise how can we possibly make any sense of why we fought our Civil War, or the subsequent and ongoing Civil Rights struggle to make such inspirational words as “all men are created equal” (Thomas Jefferson, pre-Constitution), “a new birth of freedom” (Abraham Lincoln at Gettysburg), and “I have a dream” (Dr. Martin Luther King, Jr., Aug. 28, 1963) truly applicable to all Americans?
So once again, here’s the brief refresher course on the original Constitutional provisions through which our founding fathers effectively stated that: “Never mind, all men are NOT created equal, or at least not yet!”
Article I, Section 2: “Representatives and direct taxes shall be apportioned among 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.”
(While all of us learned at some point about the offensive “three-fifths of a person” language, it’s easy to miss the somewhat counter-intuitive realization that America would have been better off had slaves not been counted at all. For it was through census counting of the three-fifths of 4 million enslaved human beings that the slaveholding states were able to ensure a disproportionately large share of congressional representatives in Washington, thus extending by decades their on our pro-slavery laws.)
Article I, 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.”
(This seemingly innocuous language was a promise embedded in the Constitution that the importation of slaves from Africa could not be prohibited until after 1808, thus allowing the supply chain for slavery to stockpile its victims for another 20 years.)
Article 4, Section 2.3: “No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of the Law or Regulation therein, be discharged from Service or Labor, but shall be delivered up on Claim of the Party to whom such Service or Labor may be due.”
(This is the Constitutional underpinning upon which the notorious Fugitive Slave laws and parts of the Dred Scott decision were enacted and upheld.)
Over the period from the states’ ratification (in 1788) until 1863, there was a single point of agreement between the most rabid pro-slavery/pro-disunion “Fire Eaters” and Abolitionists alike — the U.S. Constitution intended that slavery be legal in the United States of America. Thus, William Lloyd Garrison held a public burning of the Constitution, and John Calhoun openly advocated state “nullification” of laws not deemed in keeping with his own understanding of the pro-slavery Constitution. Further core disagreements arose over those years as to whether the founding fathers intended that slavery be allowed to expand beyond the original 13 states into new states and territories of the U.S.
By the time Abraham Lincoln assumed the presidency in April of 1861, the “irrepressible conflict” was upon us: now not only was slavery an unavoidable Constitutional defect, but related questions arose as to an individual state’s right to secede from the Union, the precise scope of presidential war powers, and the sanctity of Constitutional guarantees such as the Writ of Habeas Corpus.
So, when iconoclasts suggest that the Civil War was not simply about slavery, they are technically correct. In fact the Civil War, and the myriad of Constitutional issues which arose during the war, and during post-war Reconstruction, and during our ongoing Civil Rights struggles, which continue to this day, are actually based upon the fact that the framers chose to ratify a document that many of them acknowledged was flawed at the time. Right up until the time of his death, Thomas Jefferson himself still dreaded the alarming ring of the “fire bell in the night” concerning the certain disaster the nation faced as a result of its “original sin of slavery”.
When we speak of the incredible flexibility and longevity of our deservedly treasured Constitution, perhaps we are better served to admire the actual human beings, free and enslaved, who considered something about this nation and its social compacts worth fighting, dying and otherwise undergoing incredible hardship and sacrifice to preserve.
In other words, instead of worshipping the magnificent and durable document itself, perhaps we should instead congratulate and admire one another and those who came before us for continuing to search for the compromises and consensus, which have kept it alive through good times and bad. When we celebrate the greatness of Abraham Lincoln, Dr. Martin Luther King, and so many others just like them who haven’t forsaken our democratic experiment in spite of flaws, which might otherwise have brought about our demise, we are celebrating our collective and sometimes incomprehensible commitment to our American Experiment. That, to me, is the symbolic concept of a “living document.”
Additional interesting historical note about amendment of the Constitution
Following are two different versions of the 13th Amendment to our Constitution. Fortunately, the first version, which abolished slavery, is the one actually adopted (December 6, 1865). But check out the second version, which was approved by Congress in March 1861, ratified by three states (Ohio, Maryland and Illinois) and is technically still alive as a proposed amendment today due to the absence of an expiration date. I still find it incredible that a nation could seriously consider both as serious proposals within four years of one another!
Adopted as 13th Amendment: “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. Congress shall have power to enforce this article by appropriate legislation.”
Proposed in 1861, and still pending, 13th amendment: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”
(This unsuccessful last-ditch attempt to appease southern slaveholders and avoid war was fortunately never ratified, of course. But it remains interesting in that it also attempted to preclude future constitutional amendments that would alter its intent, and because it remains technically alive, as one of the so-called “zombie amendments,” which were never ratified yet never expired).
Patrick Teegarden, a legislative liaison for a major state government department, has been writing an award-winning series about the 150th anniversary of the Civil War for The Colorado Statesman. He can be reached at Patrick@coloradostatesman.com.