The Constitution's Greatest Error
Over at the "Assignment Desk" member Michael Tee proposed the following topic of discussion:
I'd like to see an Epstein and Yoo conversation about the Constitution. Specifically, if Profs. Epstein and Yoo were in the room while Madison et al. crafted the document, what would they each advocate to change, delete or add with the knowledge of the present. In other words, how would they change the document so that some unfortunate circumstances did not take place in the history of the United States?
For me, the greatest mistake of the Founding generation was the Constitution's protection of slavery. Chattel slavery deprived a significant part of the American people of the rights of citizenship. It divided the country along geographic lines. It distorted the structure of the government and the nature of antebellum politics. It twisted the nature of the Constitution's protection for individual rights. And its ending caused the greatest loss of life in American history. Lincoln's majestic Second Inaugural recognized that the terrible carnage of the Civil War was the price of the original founding sin of slavery:
Fondly do we hope--fervently do we pray--that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether."
One of the most terrible passages in American public speech, but it was deserved.
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Comments:
Jun '10
Re: The Constitution's Greatest Error
True enough, but let's change the question slightly to avoid too easy an answer: What's the biggest error that's still part of the constitution?
Jun '10
Re: The Constitution's Greatest Error
I agree with John that the retention of slavery is the most glaring problem in the Constitution. But that begs the question whether the Constitution could have been ratified in 1789 if it attempted to elimate slavery? I don't think so. Slavery is a great blot on our history, but sadly it was in issue that had to percolate for seven more decades before it could be resolved--and then only after a horrific war.
Given history, the second big error was the "commerce clause," which should have been followed by something like: "the foregoing is not a licence for the federal government to regulated any damned thing it wants to."
Edited on December 22, 2010 at 7:01pmOct '10
Re: The Constitution's Greatest Error
Clearly this is the saddest commentary to be lodged against the Founders. Given that the historical record reflects the Southern states refusal to ratify without the inclusion of slavery, how would you have had the Founders deal with this issue. Could the Union have been formed without those states? Any other ideas?
Jun '10
Re: The Constitution's Greatest Error
As great as it is, our Constitution was, and is, a product of political compromise--the art of the possible. The best thing about it was that it included a clear, but very difficult, way for the Constitution to be changed. I just wish that modern justices would use the method designed by the Framers, and not just amend it by decree, after liberally redefining and reinterpreting the existing text to get the meaning they WISH was there.
Re: The Constitution's Greatest Error
In dealing with the slavery question, I have always been struck by the indirect way in which Madison presented that issue as he defended the Constitution in the Federalist papers.
He refused to defend slavery in his own words. Rather, he resorted to the convenient fiction of indirect discourse, whereby some Southern Gentleman made the case for slavery, which Madison just recorded. What greater admission of the moral bankruptcy of the institution can there be! That practice was common across the board at the time of the Founding.
Indeed slavery was embedded in Roman times, but even Justinian’s Institutes treats it solely as a creature of the positive law, given that under the law of nature (here, a good thing) all men are naturally free. The moral opposition to slavery is as old as the institution itself.
Edited on December 22, 2010 at 8:05pmOct '10
Re: The Constitution's Greatest Error
You can refer to The records of the Federal convention of 1787, Volume 2, page 369 for some of the debate including:
He observed that the abolition of slavery seemed to be going in the U. S. & that the good sense of the several States would probably by degrees compleat it.
and
If the Convention thinks that N. C; S. C. & Georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those State will never be such fools as to give up so important an interest.
I think history shows that both those statements are incorrect. The slave trade ended long before 1860 but slavery was still very much in effect in those states that allowed it.
Re: The Constitution's Greatest Error
I agree with Michael Pate on both counts.
The presumption that slavery would wither away was wishful thinking, and there was no need to give way on the slave trade question..
North Carolina was not much interested in importing slaves; Georgia desperately needed defense against the Indians and the Spanish; and South Carolina would not have gone it alone. It had too large a slave population relative to its white population to chance it. The latter of the two statements quoted by Mr. Pate is a bluff.
My own view is that, if the North had been unwilling to accommodate slavery by way of the Fugitive Slave Act and the like, there would have been no Union but that the demand that the slave trade be kept open for twenty years was not a deal-breaker. Moreover, it would be hard to imagine a greater betrayal of the principles enshrined in the Declaration of Independence than sponsoring the enslavement of more Africans.
Re: The Constitution's Greatest Error
Let me add that I do not think it a crime that northerners did not demand that slavery be abolished forthwith. Jefferson's statement in 1820 -- "We have the wolf by the ears. It is unjust to hold it; it is unsafe to let it go" -- captures the dilemma faced by southerners faithful to the principles of the Declaration of Independence. I do think that we can justly regret that the first federal Congress failed to establish a mechanism making it safe to let slavery go -- by stipulating that the proceeds derived from the sale of lands in the West be used to purchase slaves from their masters and settle them somewhere -- perhaps out West -- where they would be free from racial discrimination.
May '10
Re: The Constitution's Greatest Error
In response, I have a question. The absence of the abolition of slavery was a necessary condition for Southern cooperation for ratification of the Constitution. This assumes however that the Constitution should have been ratified and that, furthermore, a union should have been formed. What was the importance of a union? If, hypothetically speaking, the politicians of the Northern states opposed slavery and the politicians of the Southern states supported slavery, then what would have been wrong with a "two-state solution" if you will? Let the North and the South form their own unions.
The postponement of the abolition of slavery is being defended here on the grounds that it ensured the integrity of the Union. But why have a union to begin with if its sustenance requires a compromise like this? I'm somewhat undecided on this issue.
Edited on December 23, 2010 at 12:55amNov '10
Re: The Constitution's Greatest Error
I had a libertarian economics professor in grad school whose solution to the slavery issue was for the north to secede from the south in 1860. His theory was that there would have been no resulting war and the institution of slavery would have eventually collapsed due to its uneconomic weight that would have soon been obvious without the northern market for cotton.
Not much value but in the realm of intellectual banter, it does give pause for thought.
I agree with the general sentiment regarding the commerce clause. However, in that era of mercantilism, it, like slavery, benefited a segment of the population whose voice was loudest at the time.
One of the greater political losses of the civil war was that of states rights which was an unfortunate casualty of the war.
Edited on December 23, 2010 at 12:49amRe: The Constitution's Greatest Error
Robert Promm: I had a libertarian economics professor in grad school whose solution to the slavery issue was for the north to secede from the south in 1860. His theory was that there would have been no resulting war and the institution of slavery would have eventually collapsed due to its uneconomic weight that would have soon been obvious without the northern market for cotton.
Not much value but in the realm of intellectual banter, it does give pause for thought.
I agree with the general sentiment regarding the commerce clause. However, in that era of mercantilism, it, like slavery, benefited a segment of the population whose voice was loudest at the time.
One of the greater political losses of the civil war was that of states rights which was an unfortunate casualty of the war. · Dec 22 at 3:40pm
Edited on Dec 22 at 03:49 pm
The libertarian economics professor you mentioned did not know what he was talking about. Slavery was fabulously profitable -- which is why it grew and grew and grew and spread to the West. Libertarian dogma is no substitute for evidence. See Time on the Cross.
Re: The Constitution's Greatest Error
Michael Labeit
In response, I have a question. . . . What was the importance of a union? If, hypothetically speaking, the politicians of the Northern states opposed slavery and the politicians of the Southern states supported slavery, then what would have been wrong with a "two-state solution" if you will? Let the North and the South form their own unions.
The postponement of the abolition of slavery is being defended here on the grounds that it ensured the integrity of the Union. But why have a union to begin with if its sustenance requires a compromise like this? I'm somewhat undecided on this issue. · Dec 22 at 3:08pm
Edited on Dec 22 at 03:55 pm
The fear was that, absent a Union of the colonies, we would become the sport of European politics. Let me add that, had the Union split over slavery, there would have been a war over the western territories --- and the South would almost certainly have won. Virginia was a force to be reckoned with.
Re: The Constitution's Greatest Error
Robert Promm:
One of the greater political losses of the civil war was that of states rights which was an unfortunate casualty of the war. · Dec 22 at 3:40pm
Edited on Dec 22 at 03:49 pm
States rights survived the war. It took the New Deal and the Great Society to kill the notion. The ground was prepared, however, by the 17th amendment. The great protection of state prerogatives was the election of US Senators by the state legislatures. Absent that, when pressure was brought to bear, nothing stood in the way of federal encroachment.
Nov '10
Re: The Constitution's Greatest Error
Paul A. Rahe
The libertarian economics professor you mentioned did not know what he was talking about. Slavery was fabulously profitable -- which is why it grew and grew and grew and spread to the West. Libertarian dogma is no substitute for evidence. See Time on the Cross. · Dec 23 at 6:09am
It is not certain that an agrarian Confederacy without access to Union markets for its raw materials would have been able to survive for long. I have seen other data that shows slavery to not have been all that profitable. So this too is debatable.
Edited on December 23, 2010 at 5:21pmRe: The Constitution's Greatest Error
Robert Promm
Paul A. Rahe
The libertarian economics professor you mentioned did not know what he was talking about. Slavery was fabulously profitable -- which is why it grew and grew and grew and spread to the West. Libertarian dogma is no substitute for evidence. See Time on the Cross. · Dec 23 at 6:09am
It is not certain that an agrarian Confederacy without access to Union markets for its raw materials would have been able to survive for long. I have seen other data that shows slavery to not have been all that profitable. So this too is debatable. · Dec 23 at 8:19am
Edited on Dec 23 at 08:21 am
If it was not all that profitable, why did it spread so far and so fast? And the market is Europe were plentiful for things like cotton, rice, and sugar.