On 4 July 1854, the abolitionist William Lloyd Garrison addressed a large Independence Day gathering at Framingham, Massachusetts.footnote One month earlier, a federal tribunal in Boston had ordered Anthony Burns, a fugitive from slavery, to be returned to his Virginia owner. Garrison had a long established reputation for outraging respectable opinion by his militant condemnation of slavery and its defenders, North and South. But on this day, he outdid himself. First, he burned a copy of the fugitive-slave law of 1850, under which Burns had been returned to bondage. Then he burned the court decision. Finally, he held aloft ‘the parent of all the other atrocities’—the us Constitution. Calling it ‘a covenant with death, an agreement with hell’, Garrison set it on fire.

Garrison, of course, was neither the first nor the last American to believe that the Constitution’s provisions regarding slavery fatally undermined its claim to ‘establish justice’ and promote the ‘general welfare’. During the recent commemoration of the Constitution’s bicentennial, Supreme Court Justice Thurgood Marshall pointedly reminded the country of those excluded from the founders’ definition of human rights. Marshall, one suspects, was reacting not simply to the unrelentingly celebratory nature of the occasion, but to the charge by Attorney General Edwin Meese, rejected Supreme Court nominee Robert Bork, and other conservatives, that federal judges should confine themselves to implementing the ‘original intent’ of the Constitution’s framers. Not all Americans, Marshall suggested, consider that intent entirely benign.

In an age of semiotics and deconstruction, not to mention intense debate among historians about the prevailing ideas of the revolutionary era, there is something refreshingly naive, almost quaint, in the idea that any text, including the Constitution, possesses a single, easily ascertainable, objective meaning. Of course, the call for a jurisprudence of ‘original intent’ is less a carefully-thought-out intellectual stance than a political rallying cry, a justification for the undoing of modern Supreme Court decisions that have broadened the definition of constitutional rights, especially for black Americans. Whether the Supreme Court should be bound by the ‘original intent’ of the Constitutional text is a political, not a historical question. But the current debate over originalism does have the virtue of directing our attention to the two interrelated issues with which this article is concerned: the history of constitutional law and Supreme Court decisions concerning Afro-Americans; and how differing understandings of that history continue to play a central part in the debate over civil rights. Rather than attempting the impossible task of surveying all of American history, what follows will focus on three key moments: the Constitutional Convention itself, the rewriting of the Constitution during Reconstruction; and the most recent rulings of the Supreme Court.

When the struggle for independence began, slavery was already an old institution in America. For well over a century, slaves had tilled the tobacco fields of Virginia and Maryland; for nearly as long they had laboured on the rice plantations of coastal South Carolina. Slaves also worked on small farms in parts of the North, and in many artisan shops in cities like New York and Philadelphia. Taking the nation as a whole, one American in five was a black slave in 1776. Among both blacks and whites, the Revolution inspired widespread hopes that slavery might be removed from American life. With the British offering freedom to slaves who joined the royal cause, tens of thousands fled their owners and gained their liberty. Thousands of others escaped bondage by enlisting in the Revolutionary Army. During the 1780s a considerable number of Southern slaveholders, especially in Virginia and Maryland, voluntarily emancipated their slaves. By the early nineteenth century every state from Pennsylvania north to New Hampshire had taken steps to abolish slavery. Nonetheless, the stark fact is that there were considerably more slaves at the end of the revolutionary era than at the beginning. The first national census, in 1790, revealed that the half-million slave population of 1776 had grown to some 700,000.

American statesmen, including slaveholders like Washington and Jefferson, were fully aware that slavery blatantly violated the Revolution’s professed ideals. But to call slavery an ambiguity, or even a contradiction, in the minds of the founders is to fail to confront the institution’s centrality in late-eighteenth-century America, and the strength of the barriers to abolition. Slavery was already the foundation of social and economic life in the Southern states. Racism was well entrenched nationwide. And in an era that saw ownership of property as the basis of individual freedom, the sanctity of property rights formed a powerful bulwark of slavery. This was demonstrated not only by the failure of abolition in the South, but by its slowness in the North, where slavery was peripheral to the economy. In New York, for example, the emancipation law of 1799 freed no living slave; it merely provided for the liberty of any child born to a slave mother, and only after he or she had served the mother’s master until adulthood as compensation for the owner’s future loss of property rights.

The fifty-five men who gathered at the Constitutional Convention in 1787 included numerous slaveholders, as well as some dedicated abolitionists. As James Madison recorded, in many of the debates ‘the institution of slavery and its consequences formed the line of discrimination’. Although their implications are often misunderstood, the Constitution’s key provisions regarding slavery are easily summarized. First, Congress was prohibited from abolishing the importation of slaves into the country for twenty years. Second, the states were required to return to their owners all fugitives from bondage. Third, in determining each state’s representation in the House of Representatives and its electoral votes for President, three-fifths of the slaves would be counted along with the free population. It should be noted that in deference to the sensibilities of some delegates, the words ‘slave’ and ‘slavery’ did not appear in the original Constitution; instead, such terms were used as ‘other persons’ and persons ‘held to service or labour’. As Luther Martin, a Maryland attorney who attended the Constitutional Convention but bitterly opposed ratification, wrote, his fellow delegates ‘anxiously sought to avoid the admission of expressions which might be odious in the ears of Americans.’ But, he went on, they were ‘willing to admit into their system those things which the expressions signified.’

Clearly the Constitution’s slavery clauses were compromises, efforts to find a middle ground between the institution’s critics and defenders. But the Southern states had the advantage that they would not agree to a Constitution that threatened slavery, while abolition was a minor concern to most Northerners. Thus it should not be surprising that taken together, these clauses strengthened the institution of slavery, and left it even more deeply embedded in American life and politics. The slave-trade clause allowed a commerce condemned by civilized society, and against which laws had been passed by the Continental Congress and most of the states, to continue into the nineteenth century. Partly to replace slaves who had escaped to the British, and partly because of the expansion of cotton production after the invention of the cotton gin in 1793, South Carolina and Georgia took advantage of the twenty-year hiatus before abolition of the trade, to import some 40,000 additional Africans—about 10 per cent of all slaves brought to British North America from colonial times to 1808. The fugitive-slave clause accorded slave laws ‘extraterritoriality’—that is, that the condition of bondage adhered to a person even if he or she escaped to a jurisdiction where slavery had been abolished. It made all the states, and the federal government, complicit in maintaining the institution’s stability. The three-fifths clause allowed the white South to exercise far greater power in national affairs than its numbers warranted. It produced, said Luther Martin, ‘the absurdity of increasing the power of a State in making laws for free men in proportion as that State violated the rights of freedom.’ Partly as a result, all but four of the first sixteen presidential elections between 1788 and 1848 placed a Southern slaveholder in the White House. It is worth noting that the much-maligned Articles of Confederation, which the Constitution replaced, had no three-fifths clause magnifying Southern political power, and no fugitive-slave clause (although it did require states to surrender persons charged with ‘treason, felony, or other high misdemeanor’). Whatever its other merits, the Constitution represented a step backwards when it came to slavery.